text:
    FARM BUREAU MUTUAL INSURANCE COMPANY of Missouri, a Missouri Corporation (Plaintiff) Respondent, v. Albert ANDERSON (Defendant) Appellant.
    No. 30725.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 15, 1962.

      Donald V. McKee and Allen H. Surin-slcy, Clayton, for appellant.
    Charles N. Goodman, Clayton, for respondent.
   GEORGE P. ADAMS, Special Judge.

Plaintiff-respondent-insurer paid defendant-appellant-insured $650.00 under its policy for property damage to defendant’s car and took an assignment from defendant pursuant to subrogation provisions in the policy. Defendant settled with and gave releases to a third party tort-feasor. Plaintiff, claiming that defendant had thereby precluded it from asserting its subrogation and assignment rights, brought suit to recover its net payment to defendant, $520.00. Following a directed verdict in favor of plaintiff for said sum of $520.00, defendant appeals.

Prior to September 20, 1954, plaintiff issued its policy in favor of defendant, which included a $50.00 deductible automobile collision agreement. The policy also contained a subrogation agreement providing that in the event of payment under the policy, the plaintiff “shall be subrogated to all the insured’s rights of recovery therefor against any person or organization” and that “ * * * insured shall do nothing after loss to prejudice such rights.”

On September 20, 1954, and while the policy was in force, defendant’s car was damaged and he and his wife received personal injuries in a collision with one Gilbert Cattoor. In an “Automobile Accident Notice,” defendant reported details of the accident, as follows:

“We were going west on Highway 50 at about 40 when I saw the car coming from the west. When I saw the other car, I could see he was coming fast and was weaving. I immediately started to slow down and pull to the right. Other car swerved right at us and at time of collision I was partly off on the shoulder and I was either stopped or almost stopped.”

Plaintiff and defendant agreed that the value of defendant’s demolished car was $700.00, and on December 16, 1954, plaintiff paid defendant $650.00 and took title to the car, which was later sold as “salvage” for $130.00. At that time, defendant executed a “release and authorization to pay for damages, repairs, replacements and loss”, which also contained a subrogation agreement providing:

“It is agreed by the Insured that upon payment of the foregoing claim, Farm Bureau Mutual Insurance Company of Missouri is hereby subrogated to all claims and rights of action of the undersigned against any third person or persons, firm, corporation or estate to the amount so paid, and the undersigned assigns and sets over to the said corporation all such claims with the right to prosecute the said action or actions in the name of the assignor.”

On May 16, 1955, defendant and his wife settled with Cattoor and his insurance carrier and defendant executed two releases— one for himself alone for $6,000.00, agreeing to release, acquit, and forever discharge Cattoor “of and from any and all actions, causes of action, claims, both direct and consequential actions, demands, damages, costs, loss of service, expenses and compensation, which I now have, or may hereafter have, on account of, or arising out of any matter or thing which has happened, developed, or occurred, before the signing of this release, and particularly” because of the accident on September 20, 1954 — and another for $7,000.00 paid to his wife and an additional $2,000.00 paid to defendant, wherein they agreed to remise, release and forever discharge Cattoor “from any and all such claims, demands, damages, costs, expenses, loss of services, actions and causes of actions arising from any act or occurrence from the beginning of the world up to the present time, and particularly on account of all personal injury, disability, property damage, loss of services and loss or damages of any kind” sustained in consequence of the accident of September 20, 1954.

On March 13, 1957, plaintiff filed its petition alleging that the $6,000.00 release was given without plaintiff’s knowledge or consent and it barred plaintiff’s right of action under the subrogation agreement executed by defendant; also, that said release to the third party tort-feasor breached the subro-gation agreement of the policy and the sub-rogation agreement executed after the loss, in that defendant thereby precluded plaintiff’s right of recovery.

In addition to a general denial, defendant’s answer alleged that on or about December 16, 1954, one Warren Brown, “an agent, servant and employee of the plaintiff” advised defendant “that it was alright to settle with Gilbert F. Cattoor and Gilbert F. Cattoor’s insurance company”, and that plaintiff should be estopped to deny that it was all right for defendant to settle with Cattoor.

Warren D. Brown, who testified that at the time of loss he was a claim adjuster for plaintiff and at the time of the trial (May 9, 1960) he was in charge of plaintiff’s Clayton office as District Claims Supervisor, had been served with a subpoena duces tecum to produce three communications between Brown and Paul E. Decker, a lawyer employed by plaintiff. Two of the communications, Defendant’s Exhibits “A” and “B”, are identified by the trial judge in connection with a ruling as “a couple of communications between people in the Farm Bureau Insurance Company’s adjustment setup.” The third “communication”, Defendant’s Exhibit “C” reads as follows r

“Interoffice — Farm Bureau Mutual Insurance Company of Missouri, Jefferson City, Missouri — Memo to Paul' E. Decker, from Warren D. Brown. Subject HO A 64686, Albert Anderson, St. Louis County, D/A 9-20-54. Date November 23, 1955. As per your request in memo of November 4, I have-called on Mr. and Mrs. Anderson and1 they claim they did not collect for damage to their vehicle when settlement was made with Mr. Ebert who was the attorney that handled the claim for No. 3’s insurance company. No. 3 was insured with Farmers Mutual of Madison, Wisconsin and the claim was assigned to Mr. Ebert by their Kansas City office. Since talking to Mr. and Mrs. Anderson, I have again contacted Mr. Ebert and he has informed me that he has information in his file which clearly shows that in settlement with Mr. and Mrs. Anderson under the special damages claim by Anderson, $1,500.00 was allowed in payment to Anderson as the actual value of his car, which was demolished in this accident. He also states that both McKee and Anderson made it plain to him that he did not have collision on his car and no payment had been made to him in regard to settlement under collision coverage by any insurance company. I suggest you write Mr. Anderson a rather stern letter pointing out to him that we are looking to him for payment on money we paid out in regard to settlement under his collision coverage. I see no reason why we should lose the money we paid out in good faith under the coverage we afforded Mr. Anderson on this policy although I realize we are in a rather embarrassing position by not putting No. 3’s insurance company on notice of our sub-rogation rights. At the time this accident happened, I was on my own and did not have an accurate file system as we have now. It was quite easy for a claim to get set aside and we failed to see that all necessary letters protecting our interests were written. This happened to be one of those claims that passed by. However, both Ebert and McKee, attorney for Anderson, had been notified of our subrogation claim verbally. In fact, McKee had. offered to collect our subrogation claim for us. I will await a reply from you before taking any other action on this claim. W. D. B.”

On objection of plaintiff on the ground that the “communications” were privileged, the court refused to admit Exhibit “C” into evidence and sustained a motion to quash all three exhibits, “A”, “B” and “C”.

At the trial, in answer to the question, “How did this collision occur, please?”, defendant said: “Well, he turned out to pass another car and started to skidding, and I seen him coming so I started pulling over and slowed up.” He testified further that the pavement was wet. On cross-examination, defendant testified that Cattoor came over to defendant’s side of the road and hit him head-on approximately, and that at that time defendant was completely off the road on the shoulder; also, that “there wasn’t any question about whose fault.”

During the course of defendant’s testimony, he offered to prove that on December 16, 1954, Brown, “Agent and Superintendent” for plaintiff, told defendant that it was all right to settle with Gilbert Cat-toor and Cattoor’s insurance company; that Brown and plaintiff “had no further interest in defendant’s claim and that it would be perfectly all right to go ahead and settle with them” and that in reliance upon the representations of Brown, defendant did settle with Cattoor and his insurance Company. An objection was sustained to the offer.

Cattoor testified he didn’t remember whether his car skidded or not; that he didn’t remember the details of the accident; that he was unconscious for five days.

Defendant offered a deposition of a Donald V. McKee, an attorney who represented him in the settlement with Cattoor. An objection by plaintiff that the deposition “is the most self-serving thing that — ” and that it “is secondary evidence and it wouldn’t be admissible as he would only be able to talk as agent for Mr. Anderson who is in the courtroom” was sustained after the court commented that it couldn’t see “how the deposition of the man’s own attorney would be admissible in his behalf * *

In the deposition, McKee identified himself as defendant’s attorney in his claim against Cattoor and testified that he dealt with Robert Ebert, a representative of Cat-toor’s insurance company; that he “represented his claims for personal injuries to himself and his wife, for various losses directly resulting from the accident, both as to crops, for domestic help hired, losses to cattle on his farm which he was operating; in fact, every claim Mr. Anderson had, with the exception of a claim for loss which was sustained by reason of loss of his automobile” ; that he advised Mr. Ebert that Mr. Anderson had collision insurance; that he had effected a settlement of his claim; that Ebert would have to look to Farm Bureau, or expect a claim from Farm Bureau for the amounts they paid under their collision policy; that Ebert was told that Anderson had collision insurance and that he was not representing the collision carrier; that this “notice” that Anderson had settled his “deductible” claim with Farm Bureau was given Ebert prior to the settlement with Ebert.

On motion of plaintiff, the Court directed a verdict for plaintiff for $520.00.

Defendant’s first contention is that it was necessary for plaintiff to have shown that Cattoor was negligent before it could claim damage in being deprived of its right to pursue its subrogation assignment against Cattoor, and that it did not do so.

In Home Ins. Co. of New York v. Smith, 235 Mo.App. 552, 140 S.W.2d 64, the defendant-insured made a report of the accident to plaintiff-insurer which “indicated that the damages to his automobile had been suffered through the sole fault of the third party tort-feasor * * In passing on a contention similar to the one made by defendant here, the court said, at page 68 of 140 S.W.2d:

“ * * * Furthermore, if it was incumbent upon plaintiff to prove, as an element of the cause of action asserted, that it might have recovered against the third party as a tort-feasor (Hamilton Fire Insurance Company v. Gre-ger, supra), it is enough to point out that the only showing made regarding the responsibility for the collision was contained in defendant’s own report of the accident, which purported to disclose that the same was wholly the fault of the third party tort-feasor with whose automobile that of defendant had collided.” [Hamilton Fire Insurance Company v. Greger, 246 N.Y. 162, 158 N.E. 60, 55 A.L.R. 921.]

The automobile accident notice which was furnished plaintiff by defendant here purports “to disclose that the same was wholly the fault of the third party tort-feasor.” It disclosed that defendant was struck by Cattoor’s car when defendant was partly off on the shoulder on defendant’s side of the highway (in his testimony at the trial, defendant said he was “completely off” on the shoulder). We think this justifies the conclusion that, at least according to defendant’s version, Cattoor was at fault.

In support of his position that the jury should have passed on Cattoor’s negligence, defendant relies solely on his own testimony at the trial that the pavement was wet and that Cattoor’s car started to skid. After collecting $15,000.00 in damages for his wife and himself, based upon the negligence of Cattoor, defendant’s claim now that the accident was not the fault of Cattoor is incredulous.

Considering defendant’s original report of the accident, his testimony that he was completely off on the shoulder when struck by Cattoor (and his conclusion, by which he should be bound, that there was no question about whose fault caused the accident) and the substantial settlement paid his wife and him, we feel that there was no issue for the jury in this respect.

Defendant next complains that the court erred in quashing the subpoena duces tecum calling for the production of the communication between Decker and Brown, Defendant’s Exhibit “C”. Inasmuch as this paper was actually produced and marked as an exhibit, the court’s ruling quashing the subpoena was ineffective and if erroneous, was harmless. However, the court did exclude this exhibit and an offer of proof was made by reading it into the record. We feel that defendant’s assignment of error and argument in support of the assignment is sufficient to preserve his right to have the Court’s action reviewed.

This “inter-office memo” or communication was privileged and the trial court did not err in sustaining plaintiff’s objection to its introduction (or production) on that ground.

The communication did not relate “to a subject matter under investigation in the ordinary course of” plaintiff’s business and was not “written almost immediately after the occurrence” as was the case in Curtis v. Indemnity Co. of America, 327 Mo. 350, 37 S.W.2d 616, cited by defendant. On the contrary, it was written on November 23, 1955, one year, two months and three days after the loss and eleven months and seven days after plaintiff had settled with defendant. It was in fact made in “anticipation of litigation” (Civil Rules 57.01(b), 58.01 and 56.01, V.A.M.R.) and was with reference to litigation “contemplated” and was privileged. State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69, l. c. 73(7). It dealt with the subject of collecting plaintiff’s subrogation payment from defendant, with Brown’s call upon defendant, and his refusal to repay (and his reasons). In it, Brown recommended to plaintiff’s attorney that a “stern letter” be written defendant pointing out that plaintiff was looking “to him for payment” of the money it had paid out. Brown’s comment that he saw no reason why plaintiff “should lose the money we paid out in good faith” indicates a frame of mind contemplating enforcement of the claim by litigation, if necessary. Finally, on March 13, 1957, the “anticipated” litigation became a reality with the filing of this suit relating to the identical subject matter of the memo.

Defendant next complains of error in the exclusion of McKee’s deposition. Those portions of it relating to the extent that McKee represented defendant in negotiating the settlement with Cattoor and that the release “did not include damage to Anderson’s automobile” were conclusions and inadmissible. However, in the deposition McKee testified that he advised the agent of Cattoor’s insurance carrier that defendant had collision insurance and that plaintiff had paid defendant. These were statements of fact and not conclusions of the witness. That it was testimony of defendant’s attorney and the fact that defendant was in the courtroom did not render it incompetent. Whether Cattoor and his carrier had notice of plaintiff’s collision payment to defendant and thus of plaintiff’s subrogation rights is material to the issues of the case; in fact, it is of decisive importance.

If Cattoor and his carrier had notice or knowledge of plaintiff’s payment to defendant, they knew that plaintiff “ ‘occupied the position of subrogee and * * * had acquired a right of action against it (Cattoor) which was not controlled by the insured and which the latter had no right to cancel. The insurer was in no way a party to the settlement (between defendant and Cat-toor), and we think that the latter was made subject to its (plaintiff’s) rights and without destruction thereof.’ ” Having such knowledge “ ‘the primary wrongdoer cannot make with the insured a settlement which will deprive of its known rights the insurer, who was not a party to the settlement, and has made its payments before the settlement.’” General Exchange Ins. Corporation v. Young, Mo.App., 206 S.W.2d 683, 689(5), quoting with approval from Ocean Accident & Guarantee Corporation v. Hooker Electro-Chemical Co., 240 N.Y. 37, 147 N.E. 351, 354; General Exchange Ins. Corporation v. Young, 357 Mo. 1099, 212 S.W.2d 396, affirming this court’s opinion, in 206 S.W.2d, supra, saying, at page 397, that “all of appellant’s assignments of error are there fully discussed and we think correctly decided.”

Therefore, if a third party tort-feasor, with knowledge of an insurer’s right of action as subrogee, and without the consent of the insurer, settles with the insured, the insurer’s right to proceed against such tort-feasor is not affected. In such case, the primary wrongdoer, and not the insured, should repay the insurer. Hamilton Fire Insurance Company v. Greger, 246 N.Y. 162, 158 N.E. 60, 55 A.L.R. 921, 925.

On the other hand, if the third party tort-feasor has no knowledge of the insurer’s payment to the insured and of its subrogation rights, and if the release purports to cover all damages sustained by insured on account of the collision (as did both releases given Cattoor and his carrier) and is not limited to damages not included in an earlier payment, then the subrogee’s right of action against the third party tort-feasor has been effectively barred and defeated and the insured should repay insurer the amount of its collision payment. Home Ins. Co. of New York v. Smith, 235 Mo.App. 552, 140 S.W.2d 64, 67(5).

Defendant also contends that his settlement with Cattoor did not include damages to his car.

If it had been the intention of defendant and Cattoor not to include damages to defendant’s car in the settlement, defendant could have seen that the release was expressly limited to damages other than those to his car and plaintiff’s right of subrogation -would not have been affected. However, having given a release purporting to cover all damages “defendant, and not plaintiff, is alone to blame for any discharge of the third party tort-feasor upon payment of less than the full amount of the damages which his negligence may have occasioned, and it is therefore of no avail to defendant to suggest that the amount realized from the third party tort-feasor compensated him only for the excess of his loss over and above the portion of it paid by plaintiff.” Home Ins. Co. of New York v. Smith, 235 Mo.App. 552, 140 S.W.2d 64, 67-68(5).

As was said in Illinois Automobile Insurance Exchange v. Braun et al., 280 Pa. 550, 124 A. 691, l. c. 692, 36 A.L.R. 1262, 1265, defendant “could not be permitted to jeop-ard appellee’s (plaintiff’s) position by mixing up the claims and making a lump settlement and then set up this as a reason against appellee’s recovery from them.”

It was within defendant’s power at any time prior to settlement to notify Cattoor and his carrier of plaintiff’s payment to him or to have limited the releases to damages in excess of, or in addition to, those to his automobile. He did not do the latter, and if he did not do the former he should repay plaintiff.

Plaintiff attempts to support the exclusion of McKee’s deposition by asserting that a “foundation” for its admission was not laid. It would be sufficient to say that no objection on that ground was made at the trial and it is too late to urge it for the first time now. However, one of the “facts which would authorize the reading of the deposition” is that by reason of “sickness * * * he (deponent) is unable to or cannot safely attend court.” Civil Rule 57.-29(b) (3).

At the time the deposition was offered, the court inquired as to whose attorney McKee was, and counsel for plaintiff stated: “Anderson, on his claim against Cat-toor and shortly before this was set for trial, I believe last October, they took a fast deposition of McKee and he has since become ill.” In addition to failing to object that no ground was laid, plaintiff’s counsel’s own statement indicated that one of the grounds authorizing its use in fact existed.

In denying defendant the right to attempt to show that Cattoor and his carrier had notice of plaintiff’s payment to defendant, the trial judge stated: “The Court doesn’t think it makes any difference whether they have notice or not.” In an effort to support the theory of the trial court and the exclusion of McKee’s deposition relating to notice to Cattoor and his carrier, plaintiff cites Subscribers at Casualty Reciprocal Exchange, by Dodson et al. v. Kansas City Public Service Co., 230 Mo.App. 468, 91 S.W.2d 227. In General Exchange Ins. Corporation v. Young, 206 S.W.2d 683, 691, we ordered the cause transferred to the Supreme Court because our opinion was in conflict with the Casualty Reciprocal Exchange case. In its opinion, 212 S.W.2d 396, l. c. 399 and 401, the Supreme Court disapproved the holding in the Casualty Reciprocal Exchange case and it is no longer to be followed.

Defendant’s final contention is that he should have been permitted to have proved “that defendant inquired of Warren Brown if it was alright to settle with Cat-toor and Warren Brown advised that it was alright for defendant to settle with Cat-toor.” Specifically, defendant offered to prove by Brown that on December 16, 1954, Brown told defendant that it was all right to settle with Cattoor and that plaintiff had no further interest in “defendant’s claim.” The theory upon which defendant made the offer was under his plea of “estoppel.”

The only testimony relative to the position which Brown held with plaintiff on December 16, 1954, was that of Brown he was a “claim adjuster”. Therefore, without a showing of a greater authority, an adjustor’s authority is limited “to the ascertainment and adjustment of the loss; and he has no power merely as such, in the absence of some evidence as to his authority, to alter the contract, or waive any of its essential conditions;” 45 C.J.S. Insurance § 1102, page 1339; Booker v. Motors Ins. Corporation, Mo.App., 228 S.W.2d 694, 696(1). Whatever Brown may have said he could not alter or waive any of the essential conditions of the insurance policy or the subrogation assignment.

Upon the record made, the trial court properly sustained plaintiff’s objection to this testimony.

Because of the error in refusing to admit the deposition of Donald V. McKee into evidence, the judgment is reversed and cause remanded for a new trial.

ANDERSON, P. J., and WOLFE, J., concur.

RUDDY, J., not participating.


source: Caselaw Access Project

author: HARRY A. HALL, Special Judge.

license: Public Domain

text:
    Ralph KAUP, Plaintiff-Respondent, v. Carl Henry LUTHJOHAN and Truckaway Corporation, Defendants-Appellants.
    No. 30947.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motions for Rehearing or to Modify Opinion Denied Oct. 15, 1962.

      Chapman & Chapman, Arthur Litz, Jerome M. McLaughlin, St. Louis, for appellants.
    Donald S. Hilleary, John D. Hasler, St. Louis, for respondent.
   HARRY A. HALL, Special Judge.

Plaintiff brought suit for injuries resulting from an automobile-truck collision February 19, 1959, on U. S. Highway 66 at the “T” intersection with Lafayette Avenue in Florissant, St. Louis County, Missouri.

Plaintiff submitted his case on the humanitarian theory. The jury found for the defendants on plaintiff’s petition and in favor of the defendant truck company on its counterclaim for $993.37 property damage to its truck. The court sustained plaintiff’s motions for new trial as to his cause of action and also as to the defendants’ counterclaim, because of error in giving instructions 3 and 9 on behalf of defendants, and in refusing plaintiff’s Instruction A. Defendants have appealed from the rulings of the court.

Highway 66, where the collision occurred, is a two-lane paved highway running east and west and is a through street protected by a stop sign against traffic from the north on Lafayette, which deadends at this intersection. An overhead signal light was red for Lafayette and on caution for Highway 66 traffic.

Plaintiff testified that it was a bright, sunny morning, the streets were dry, and as he drove south on Lafayette approaching the highway he stopped five to six feet from the north edge of the highway pavement, from which point the view was clear to the east or his left for 100 to 200 feet. He looked to his right and left and seeing no traffic proceeded with a left turn on the highway and accelerated gradually from his stop to a speed of 10 miles per hour, traveling some 17 to 20 feet when the collision occurred. The sun was in his eyes and he didn’t see the truck nor know where it came from.

Defendant Luthjohan stated he was driving a new truck chassis for the defendant Truckaway Corporation, carrying two additional truck chassis “piggy back,” in a westerly direction toward the Lafayette intersection, going 30 to 35 miles per hour. He first saw plaintiff when 50 to 60 feet from the intersection when plaintiff was north of the pavement 6 to 10 feet and almost stopped, and made what he described as a “rolling stop.” He put his foot on the brake and slacked up because he didn’t know what plaintiff was going to do, then plaintiff looked right at him and he thought plaintiff was going to stop, so he proceeded toward the intersection. That he continued to watch plaintiff’s car and when he was about 15 feet away, plaintiff suddenly pulled out in front of him, making a left hand turn. He applied his brakes and swerved to his right and had reduced his speed to 25 miles per hour at the time of the impact between the left front of his truck and the left side of plaintiff’s automobile. Luthjo-han testified he could stop in 40 to 50 feet while traveling 30 to 35 miles per hour, and in 30 feet when going 25 miles per hour. There were no other witnesses to the accident. In view of the errors assigned, it will not be necessary to consider the nature or extent of plaintiff’s injuries.

Defendants’ first assignment of error is the refusal of the court to sustain their motions for directed verdict for the reason that plaintiff failed to make a sub-missible case. Plaintiff relies upon the driver’s statement that when 50 to 60 feet away and going 30 to 35 miles per hour he saw plaintiff almost stopped some 6 to 10 feet from the pavement edge, that he put his foot on his brake and slacked up, and at that speed could have stopped in 40 to 50 feet. In view of plaintiff’s evidence that he started from that point and proceeded gradually with his left turn, traveling 17 to 20 feet and attaining a speed of 10 miles per hour to the point of collision, we cannot say as a matter of law that plaintiff failed to make a submissible case under the humanitarian doctrine. Taking the estimates of speed, location of the vehicles and stopping distances most favorable to plaintiff, and using these in relation to the time and location that Luthjohan saw plaintiff make a “rolling stop” and the fact that the driver continued to observe plaintiff thereafter as he entered a position of imminent peril and would have stopped except that he thought plaintiff had seen him and was going to stop, the jury could have found that by the exercise of the highest degree of care the truck driver could have avoided the collision. We therefore hold that the court did not err in overruling defendants’ motions for directed verdicts.

Defendants complain because the court granted a new trial because of error in giving defendants’ Instruction No. 3, which is as follows:

“The Court instructs the jury that plaintiff charges that the defendants saw, or by the exercise of the highest degree of care, could have seen the plaintiff’s automobile proceeding south on Lafayette Avenue and into its intersection with Highway 66, and in a position of imminent peril of being struck, in time thereafter, by the exercise of the highest degree of care, with the means and appliances at hand and with safety to defendant Luthjohan and his truck-chassis, to have stopped his truck-chassis or sufficiently slackened the speed thereof, and by so doing either act could have avoided colliding with plaintiff’s automobile.
“In reference to said charge, the Court instructs the jury that if you believe and find from the evidence that as soon as the automobile which plaintiff was driving reached a position of peril of colliding with defendants’ truck-chassis, the driver of said truck-chassis, Carl Luthjohan, could not, by the exercise of due care, have prevented the automobile which plaintiff was driving from colliding with the truck-chassis of defendants, then and in that case plaintiff is not entitled to recover, and your verdict shall be for the defendants Carl Luthjohan and Truckaway Corporation.”

Paragraph one of this instruction correctly recites plaintiff’s charge as requiring the defendants to exercise the highest degree of care. Paragraph two in effect tells the jury to ignore plaintiff’s charge in this respect and find for the defendants if the driver could not have prevented the collision by the exercise of due care.

Under the law, defendants were bound to exercise the highest degree of care, and this instruction which measured their liability by a lesser degree of care was an erroneous misdirection.

In Young v. Anthony, Mo., 248 S.W.2d 864, 868, the court, in disposing of a similar conflict in instructions, said :

“ * * * actually and in legal significance ‘due care’ does not mean the highest degree of care. The term ‘due care’ has been held to be equivalent to ordinary care. Wilson v. Chattin, supra (335 Mo. 375, 72 S.W.2d 1001); Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W.2d 742; Hamre v. Conger, supra (357 Mo. 497, 209 S.W.2d 242). And the use of the term ‘due care’ in an application to the hypothesized negligent conduct of either plaintiff or defendant or of both plaintiff and defendant in the instant case, wherein both the parties were motorists on a public highway, was erroneous. * *

The legislature has fixed the standard of care to be exercised by all motorists in this state as the “highest degree of care,” Section 304.010 RSMo 1959, V.A.M.S., and since its enactment a submission using the term “ordinary care” or equivalent terms “due care” or “reasonable care” has been condemned by our courts. Young v. Anthony, supra; Trump v. Ballinger, Mo., 317 S.W.2d 355.

In the Trump case, the Supreme Court considered a similar instruction given on behalf of the defendant which told the jury, (317 S.W.2d 355, 357) “ * * * The gist of this action is the charge that Defendant failed to exercise due care, and that because of such failure, Defendant was negligent. The burden of establishing this charge is upon the Plaintiff, * * ⅜."

In approving the trial court’s action granting a new trial because of the erroneous instruction the court adopted this language (317 S.W.2d 355, 357):

“ ‘ * * * said Instruction C emphasized that the gist of the action was the charge that the defendant failed to exercise due care. This was misleading, abstract, and gave the jury the opportunity to establish its own standard of conduct. It ignored that defendant was under the duty to exercise the highest degree of care toward plaintiff ⅜ * ⅜) >>

The giving of Instruction 3 was reversible error and the trial court properly granted a new trial for this reason.

Instruction No. 9, given on behalf of defendant Truckaway Corporation, submitted its counterclaim for damages to its truck based on plaintiff’s primary negligence in driving on Highway 66 in front of its truck being operated by defendant Luthjohan, when it was approaching so closely as to constitute an imminent hazard. The instruction required a finding that defendant Luthjohan was exercising the highest degree of care but made no reference to plaintiff’s humanitarian submission, nor did it require the jury to find that defendant Luthjohan was not negligent as submitted in other instructions.

A defendant, in submitting primary or sole cause negligence instructions when plaintiff is proceeding under the humanitarian theory, must be careful to avoid language that conflicts with plaintiff’s instructions or which might be so understood as to authorize the jury to find that plaintiff’s antecedent negligence constitutes a bar to plaintiff’s recovery. Mott v. Chicago, R. I. & P. Ry. Co., Mo.App., 79 S.W.2d 1057; Johnson v. Cox, Mo., 262 S.W.2d 13; Wabash R. Co. v. Dannen Mills, Mo.App., 279 S.W.2d 50, 365 Mo. 827, 288 S.W.2d 926.

In the Mott case the court said (79 S.W.2d 1057, 1062):

“ * * * It will be noted that, in effect the instruction tells the jury that if deceased Lloyd Mott was himself negligent then the jury should find for defendant. But there was the charge of negligence under the ‘humanitarian’ or ‘last chance’ rule. And in that event, even if ⅛⅜ deceased, Lloyd Mott, were negligent, that would not be a defense under that rule. Hence defendant’s instruction conflicts with plaintiffs’ instruction No. 6. It is well settled that conflicting instructions constitute error. * * * Ü

Certainly Instruction 9, when compared with Instruction 3 in requiring different degrees of care on the part of the defendants was misleading and confusing, and submitting plaintiff’s antecedent negligence without referring to or in some manner negating defendants’ humanitarian negligence was conflicting, confusing, and gave an unfavorable impression to the jury. The court’s action in granting a new trial for error in giving Instruction 9 was therefore proper.

Appellate courts are liberal in sustaining the granting of a new trial by the trial court, especially where as here the order involves the exercise of judicial discretion. Trump v. Ballinger, supra; Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599; Teague v. Plaza Express Co., 356 Mo. 1186, 205 S.W.2d 563.

Plaintiff concedes that the trial court properly refused plaintiff’s Instruction A, which related to plaintiff’s damages for lost wages, and defendants’ objection to that portion of the trial court’s order granting a new trial will be sustained.

For the reasons assigned, the action of the trial court in sustaining plaintiff’s motion for new trial on plaintiff’s petition and defendant’s counterclaim will be affirmed and the cause is remanded.

ANDERSON, P. J., and WOLFE, J., concur.


author: MARSHALL CRAIG, Special Judge.

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY of Missouri, a corporation (Plaintiff) Appellant, v. FARMERS MUTUAL AUTOMOBILE INSURANCE COMPANY OF MADISON, WISCONSIN, a corporation (Defendant) Respondent.
    No. 31093.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Roberts & Roberts, J. Richard Roberts, Farmington, for appellant.
    Hartman, Guilfoil & Albrecht, St. Louis, for respondent.
   MARSHALL CRAIG, Special Judge.

This action was commenced in the trial court on a “Petition for a Declaratory Judgment.” The parties will be referred to as designated in the trial court, that is, plaintiff and defendant. Many of the issues were joined by an agreed statement of facts, which was as follows:

“STIPULATION OF FACTS.
“1. On or about the 5th day of August, 1958, Edward Wallach owned and farmed a. certain tract of farm land on Missouri Highway W in Jefferson County, Missouri, and also farmed another tract of land on said highway, on a lease basis, which was located across the highway from the first parcel and one-half mile down said road.
“2. The said Edward Wallach raised a crop of lespedeza during the summer of 1958 on the tract of ground leased by him. In connection with the raising of such a crop, it was necessary to make hay on said land once during the summer.
“3. On or about August 5, 1958, Edward Wallach was engaged in this haying operation with the crop of lespedeza on said leased tract. At that time, Edward Wallach owned a 1948 International 1½ ton stake body truck, which was being used in this field in connection with this operation.
“4. Helping in this haying operation, among others, was Glenwood Allen, also known as Arthur Glenwood Allen. This boy was personally contacted by Wallach for this purpose. It was further agreed that he was to receive $1.00 per hour for each hour that he was so engaged in this operation.
“5. At the time of the occurrence, Edward Wallach was the named insured under a policy of insurance covering his farming operations which was in full force and effect. Said policy was identical to the policy of insurance marked Exhibit A and attached hereto, issued by the plaintiff, Farm Bureau Mutual Insurance Company of Missouri, and which Exhibit is made a part of this stipulation.
“6. At the time of the occurrence Edward Wallach was also the named insured under a policy of liability insurance issued by the defendant, Farmers Mutual Automobile Insurance Company of Madison, Wisconsin, which policy covered the aforesaid 1948 truck and which was in full force and effect on August 5, 1958. Said policy was identical to the policy of insurance marked Exhibit B attached hereto, and said Exhibit is made a part of this stipulation.
“7. On August 5, 1958, the aforesaid Wallach truck was being operated and driven on Missouri Highway W in Jefferson County, Missouri, and went off the pavement, and as a direct and proximate result thereof, Glen-wood Allen claimed to have been injured. At the time of said accident, said truck was loaded with hay from the aforesaid field of lespedeza, and the haying operation was still in progress, which hay was being taken to a barn to be stored.
“8. At the time of the accident in question, said truck was being driven by Richard Elder, with Glenwood Allen a passenger thereon. Glenwood Allen was still assisting in the haying operation.
“9. As a result of the above mentioned accident and casualty, a lawsuit was filed in Jefferson County, Missouri, by Glenwood Allen, a minor, by his next friend, Arthur C. Allen, against Edward Wallach, praying damages in the sum of Fifteen Thousand Dollars ($15,000.00). A copy of said petition is attached hereto, marked Exhibit 3 and made a part hereof.
“10. Soon after the accident above referred to, Edward Wallach reported the occurrence to the Farmers Mutual Automobile Insurance Company and said Company thereupon investigated said occurrence and thereafter advised Edward Wallach that its policy of insurance was not applicable to the occurrence herein referred to and thereupon refused to him a defense against said claim, and denied any obligation to indemnify said Edward Wallach on account of said claim and disclaimed any coverage.
“11. After notice of the accident above referred to, the Farm Bureau Mutual Insurance Company investigated the occurrence in question.
“12. Thereafter, at the request of Edward Wallach, the Farm Bureau Mutual Insurance Company, because of the existence of its policy, marked Exhibit A herein, undertook the defense of Edward Wallach.
“13. On September 14, 1959, the case of Glenwood Allen, a minor, by his next friend, Arthur C. Allen, was tried in the Circuit Court of Jefferson County, Missouri, and the Court, after hearing the evidence, rendered a verdict in favor of said Glenwood Allen and against said Edward Wallach for Two Thousand Dollars ($2,000.00). This lawsuit and resultant verdict was a friendly suit, the amount being mutually agreed upon by negotiations. Also, on or about said date, a settlement was negotiated with the parents of said Glenwood Allen, for their claim arising out of this occurrence and in connection therewith, they executed a release, releasing any claim they might have against Edward Wallach for the sum of One Thousand Three Hundred Thirty-three Dollars and 33/100 ($1,-333.33). The judgment was satisfied of record and the payment thereof was made by Farm Bureau Mutual Insurance Company of Missouri. The said Farm Bureau also paid One Thousand Three Hundred Thirty-three Dollars and 33/100 ($1,333.33) as consideration for the release above mentioned. The aforesaid friendly suit was defended by and the aforesaid parents’ settle-mcnt was negotiated by Farm Bureau Mutual Insurance Company of Missouri by and through attorneys employed by them for such purposes.
“14. The Farmers Mutual Automobile Insurance Company, defendant, was kept advised by the plaintiff of the status of the claim of Glenwood Allen, and prior to the settlement of the claim of Glenwood Allen, defendant was advised by plaintiff of plaintiff’s intention to seek reimbursement for the sum of said settlement, plus expenses from defendant, and at all times defendant continued to disclaim and deny coverage under its policy and refused to undertake defense or indemnification, in part or in total, of Edward Wallach.
“IS. The plaintiff, in addition to the sum of Three Thousand Three Hundred Dollars and 33/100 paid in the settlement of the claim of Glenwood Allen, a minor, and his parents, which it negotiated, paid the following sums for the following purposes on account of said claim:
Circuit Clerk of Jefferson County- — court costs $59.00
Roberts & Roberts, Attorneys, fees and expenses 899.80
Earl Blackwell, Attorney— fees incurred, representing Edward Wallach as his personal attorney prior to plaintiff undertaking his defense— $125.00
“16. The photostatic copies of checks here attached, marked Exhibit 5, were paid to Glenwood Allen by Edward Wallach for labor and were by Glenwood Allen endorsed and cashed, and said Exhibit is made a part of this stipulation.
“17. It is specifically understood by and between the parties hereto that, although all the facts herein set out are by them stipulated to be true, the right to challenge the propriety of the court’s consideration of these facts is not waived but specifically preserved to the parties.
“It is further understood by and between the parties hereto that each party has the right to introduce additional evidence at the trial going to any of the foregoing by way of elaboration thereon or explanation, but not in contravention thereof, and any additional evidence to other facts not here stipulated to any legal effect whatsoever.”

Exhibit “A,” referred to in the stipulation of facts, is the policy issued by the plaintiff and is commonly known as a farmers comprehensive liability policy. The portions of this policy which are pertinent are as follows:

“COVERAGE A — BODILY INJURY LIABILITY.
“To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons.
******
“COVERAGE C — EMPLOYERS LIABILITY.
“To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages because of bodily injury, including death at any time resulting therefrom, sustained by any farm employee while engaged as such in the employment of the insured.
⅝ ⅝ ⅜ ⅝ ⅝ ⅜
“III DEFINITIONS.
* * * * * *
“(d) FARM EMPLOYEE. Farm employee means an employee of the named insured or spouse whose duties
“(1) are incidental to the ownership, maintenance, or use of the farm premises, or
“(2) are domestic, or
“(3) include the maintenance or use of automobiles, tractors, farm implements or teams.
“The term farm employee shall not include the named insured or spouse or any relative of either who resides on the premises unless such relative is named as a farm employee in the declarations.”

Exhibit “B” is the policy issued by the defendant and is commonly known as a family automobile policy and contains the usual coverage and definitions and also contains, under EXCLUSIONS the following provision:

“This policy does not apply under Part I:
******
“(c) to bodily injury to any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured; * * ⅜ »

Further evidence was introduced by direct testimony and by depositions. Edward Wallach had obtained the services of Glen-wood Allen and three other boys (all about the same age as the Allen boy who was 16) all of whom were doing about the same type of work in the haying process. Mr. Wallach had hired all the boys and had agreed to pay them $1.00 per hour and their employment was to last until this operation was finished, with no limit as to time placed on it. All instructions relative to the work came from Wallach and the boys were under his control and subject to his directions at all times. At the time of the injury, Wallach and his brother were running tractors in the field while the four boys were loading bales of hay into a truck. One of the boys, Richard Elder, drove the truck as the other boys loaded it. When the truck was full the boys started to the barn with Elder still driving it. (Wallach testified that Elder was not authorized to drive the truck on the highway, but just in the field). The accident occurred on the highway when the truck left the pavement, and Allen was injured. Allen was riding in the truck at the time. No other vehicles were involved in the accident. Glenwood Allen had worked for Wallach prior to the day of the accident (but not before that summer) although the evidence is not clear as to how much he had worked. The testimony was that he had worked two or three days prior to this time, or maybe five times or a couple of times, most of the time four to six hours, a half day. He was paid $1.00 per hour and never worked a full day at any one time. He lived in the same neighborhood with Wal-lach. He was paid at the end of each day, either at the time that the work ended for the day or the next morning.

Thus, under the evidence (including the provisions of the defendant’s policy), the question for the determination of this court is whether Glenwood Allen (also known as Arthur Glenwood Allen) who was the injured party, was, at the time of his injury, an employee of Edward Wallach under such conditions and circumstances as to bring him within the provision of the defendant’s policy which did not afford coverage “to any employee of the insured arising out of and in the course of * * * other employment by the insured.”

The plaintiff relies on the case of Daub v. Maryland Casualty Co., Mo.App., 148 S.W.2d 58. In that case Winton Meyer, a sixteen year old boy was injured while engaged in work for Daub, whose insurance company denied liability under its policy. The injured boy, through his mother as next friend, brought suit against Daub which resulted in a judgment against Daub and Daub then brought suit for the recovery of that judgment against his insurance company.

The evidence shows that the mother of the injured boy worked for Daub as a general housekeeper. She only worked ona Saturday usually between 8 or 9 o’clock in the morning until noon or 1 o’clock. She was paid $1.40, $1.50, or $1.60 and her lunch each day she worked. On one occasion Mrs. Meyer asked Mrs. Daub if she did not have some work for Winton to do to keep him out of mischief, saying that maybe he could rake some leaves. Thereafter on one Saturday morning Mrs. Meyer brought Winton along with her and he raked some leaves. He worked at that until about 11 o’clock and Mrs. Daub gave him a quarter and his lunch. On a Saturday a few weeks afterwards Winton grubbed out a stump in the back yard. It took him until lunch. Later Mr. Daub drove to the Meyer home to get Winton to rake leaves. He found Winton out in the yard and asked him if he wanted to rake some leaves. Winton went into the house and reported to his mother and came out with his rake and got in the car. That was about 9:30 or 10 o’clock in the morning. When they arrived Winton commenced raking the leaves in the front yard. While he was raking leaves, Mr. Daub was assembling ladders on the porch in order to take leaves out of the guttters and put strainers in the downspouts to prevent the leaves from going through. When he had the ladders up, he asked Winton to stand on the bottom ladder to steady it and hold it in place. Winton got on the ladder and while standing there Mr. Daub threw some leaves out of a gutter in such a way that they struck Winton in the face and at the same time did something that shook the ladder and caused Winton to lose his balance so that he fell from the ladder to the concrete walk, whereby he was seriously injured. It was these injuries that gave rise to the litigation.

The court stated (148 S.W.2d loc. cit. 60:)

“The word 'employed’ is capable of a great variety of interpretations, and is therefore subject to restrictions and limitations arising from its use in connection with other words, or from the context of the contract or statement in which it appears. The word as used in the policy in suit here obviously imports the relation of master and servant or employer and employee, but it does not necessarily import every sort of such relation. That the relation in its broad sense existed when Winton was raking leaves or standing on the ladder there could hardly be a question. And this is so whether his services were gratuitous or to be paid for. But does this mean that he wás employed within the meaning of the policy? The insuring clause of the policy grants insurance against liability for injuries suffered by ‘any person or persons not employed by insureds.’ The words ‘any person or persons’ are most comprehensive and unambiguous. The restrictive words ‘not employed’ are susceptible of many meanings, and therefore necessarily introduce ambiguity and leave the clause open to construction. And that construction most favorable to the insured must be adopted.
“The word ‘employee,’ which is the correlative of employer, is commonly used as signifying continuous service, or as designating a person who gives his whole time and services to another for a financial consideration, or as designating a person who performs services for another for a financial consideration, exclusive of casual employment, or a person in constant and continuous service, or a person having some permanent employment or position, or a person who renders regular and continued services, not limited to a particular transaction, or a person having a fixed tenure or position. The words, employed and employee, as used in insurance policies, generally denote regular employment, as distinguished from occasional, incidental, or casual employment. It is in this sense, we think, that the word employed is used in the policy with which we are here concerned. The obvious purpose of the restrictive words ‘not employed’ is to exclude from coverage any person regularly employed, or, in other words, any regular employee, not a mere occasional, incidental, or casual employee. * * * ”

The defendant relies on the case of State Farm Mutual Automobile Insurance Co. v. Brooks, 136 F.2d 807, decided by the Circuit Court of Appeals, 8th Circuit, in 1943. (The Daub case, supra, had been decided in 1941). In the Brooks case, the insured was engaged in operating, among other things, a fuel yard in Joplin, Missouri. It was part of such operation to obtain wood from points outside Joplin. In late August and early September, two boys, both 16 years of age, accepted temporary employment at the place where the wood was obtained, to collect it and pile it for loading and transportation in the truck covered by plaintiff’s policy to the fuel yard of the insured in Joplin. On September 13, 1941, and while the policy was in force, the two boys were riding home in the loaded truck at which time an accident occurred resulting in the death of one boy and injury of the other. The boys received $1.00 per day and their employment was to last until the slab pile was sawed and hauled to the wood yard. It was contemplated that this would take a week and perhaps longer. It was understood between the boys and Brooks, that the boys would be carried to and from the slab pile as they had no other means of transportation. The insurance company brought a suit in the nature of a declaratory judgment to determine whether or not the company should defend the actions brought against the insured for the death of the one boy and injury to the others. The policy provided, “ ‘This policy does not apply: * * * to bodily injury to or death of any employee of the insured while engaged in the business * * * of the insurer.’ ” (136 F.2d loc. cit. 809.)

After holding that the law of Missouri applied, the court stated:

“ * * * We think the Missouri decisions have settled that the word ‘employee’ as used in this policy clause is subject to interpretation by the courts to the extent that it is not to be deemed absolutely inclusive of any and every person who may happen, at the time of an accident to be rendering some service to the insured in his business at his direction. But those decisions also indicate the kind of situations where interpretation may be called for. It is recognized that generally the insured and all the persons who are working for him for wages in his business are excluded from the insurance. A cardinal object of the insurance is to distinguish between the public and those engaged in the business, and to include the former and to exclude the latter. But in the leading case of Daub v. Maryland Casualty Company, Mo.App., 148 S.W.2d 58, illustrating the exceptional situation, it appeared that the insured, under a policy insuring against liability for injuries suffered on his premises by any person or persons ‘not employed’ by him, was working about his house and undertook to clean some leaves out of the gutters and downspouts. He called on a sixteen year old boy to stand on and steady the ladder for him, and the boy, while so doing, suffered an accidental injury. Although the boy had done some other chores around the premises on occasions and had been given small sums in recognition, it was held by the St. Louis Court of Appeals that the boy holding the ladder was a person ‘not employed’ by the insured within the meaning of the policy at the time of the accident, and the Supreme Court of Missouri, in State [ex rel. Maryland Casualty Co.] v. Hughes, 349 Mo. 1142, 164 S.W.2d 274, 276, quashed the certiorari taken to reverse the decision. In these two opinions the courts sought a proper characterization of the tasks the boy did on the premises at the insured’s direction and found them to be within the description ‘occasional, incidental, or casual employment’. Their performance did not constitute him an employee or one employed in the sense of the exclusion of the policy.
* * * ⅝ * *
“But we think that the facts in the Daub case are in contrast to those presented here * * *.
“Although the employment of the hoys in this case contemplated no more than a week’s work, the work they were hired to do, and were engaged in, was not a mere chore, but was a substantial, ordinary, recurring and necessary part of the insured’s regular business of obtaining wood at his yard in Joplin and selling it there for fuel. The wage of the boys was fixed at a dollar a day and was a compensatory wage. Though in a sense the obtaining, transporting, and unloading of the wood to be sold as fuel might be called incidental to the fuel business as a whole, they constituted a substantial part of that business. Nor may the work be regarded as casual. Sonnenberg v. Berg’s Market, 227 Mo.App. 391, 55 S.W.2d 494; March v. Bernardin, 229 Mo.App. 246, 76 S.W.2d 706; Carrigan v. Western Radio Company, 226 Mo.App. 468, 44 S.W.2d 245. It involves steady, continued application throughout the days and until completion. The thirty-five miles •of travel by the truck between the yard at Joplin and the slab pile was also clearly within the employment of the hoys in the business. The appellees have cited cases in which such transportation was not so included, as in Green v. Travelers Insurance Company, 286 N.Y. 358, 36 N.E.2d 620, where berry-pickers employed on a piece basis were free to go to and come from the fields •as they chose, but were given a ride as an accommodation. Here the boys had no other means of getting to the slab pile and their transportation back and forth was contemplated in the contract of employment and was a necessary part of the insured’s business.
* * * * * *
“The minority of the boys at the time of the accident is not material to the inquiry whether they were, as a matter of law, to be deemed members of the public covered by the policy, or employees engaged in the business of the insured. What was done determined their status as employees.” (136 F.2d l. c. 811, 812.)

The Daub case, supra, held that clauses in policies are subject to interpretation by the courts. Generally speaking the object of these policies is to distinguish between the public and those who engage in the business of the insured. The exclusion clause in the policy of the defendant in the case at bar denies coverage to any employee of the insured arising out of and in the course of employment by the insured. This provision distinguishes between the public generally and those who were engaged in any employment of the insured. This wording is some different from that in the Daub case where the term “not employed” was used, and perhaps is not as broad as the term used in the Brooks case, supra, where the exclusion applied to “any employee of the insured while engaged in the business * * * of the insured.” In the Daub case the boy was raking leaves and doing work around the house. These were odd tasks and had been sought by his mother for the purpose of keeping the boy out of mischief. The boy’s work had nothing to do with the occupation of the insured. In the case at bar the boy was doing work that was a necessary part of the employer’s means of making a living, that is a part of his farming operations. The work of loading hay and hauling it to the barn for storage was a part of the employer’s occupation. The Allen boy was employed to do a definite job and stay with it until the operation was completed. He was to be paid a definite wage for his work. He was under the direction, supervision and control of the person who ran the farming operations.

The Allen boy was hired to do, and was engaged in “not a mere chore, but was a substantial, ordinary, recurring and necessary part of the insured’s regular business * * (Language of the Brooks case.)

We think that the facts in the Daub case were different than the facts at bar to such an extent that the proper interpertation of the policy’s provision distinguishes the Daub case from the case at bar.

In the Daub case the request for employment was made by the mother who was a domestic of the employer. The boy’s employment was rather indefinite and vague and required the one supervising him to point out his particular duties. He was engaged in casual, and rather indefinite, odd chores about the premises without any definite arrangement as to time or compensation and for no definite operation.

As in the Brooks case, the Allen boy in this case was sought out by the employer who arranged to pay a specific wage for specific work and for such time as it took to complete the operation of harvesting the hay, all of which was a part of the employer’s business.

We hold that Arthur Glenwood Allen, at the time of his injury, was an employee of the insured, Edward Wallach, and that his employment at that time was such that it fell within the exclusion provision of the policy issued the insured by the defendant. The insured had no coverage under defendant’s policy as to the injured employee under the facts in this case.

The parties in this litigation agreed in their briefs and in their arguments that the sole question for review by this court is whether Arthur Glenwood Allen was an employee of Edward Wallach. The appellant raised no other serious contention. We agree that this court should review the cause de novo, and need not defer to the findings of the trial court since there was no serious conflict in the oral testimony, Skatoff v. Solomon, Mo.App., 244 S.W.2d 590. However, we find that the findings of the trial court are supported by substantial evidence and after reviewing the case de novo determine that the findings of the trial court should be affirmed.

The judgment of the trial court is hereby affirmed.

ANDERSON, P. J., and WM. M. KIM-BERLIN Special Judge, concur.


author: JAMES D. CLEMENS, Special Judge.

text:
    Stanley N. GLICK (Plaintiff) Respondent, v. Judith GLICK (Defendant) Appellant.
    No. 31085.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.

      Moss H. Silverforb, Kansas City, and Robert A. Mcllrath, Flat River, for appellant.
    J. Richard Roberts, and Roberts & Roberts, Farmington, for respondent.
   JAMES D. CLEMENS, Special Judge.

This is the second appeal by defendant wife in this case. She previously appealed from the trial court’s interlocutory judgment on allowances pendente lite. See Glick v. Glick, Mo.App., 336 S.W.2d 528, in which this court upheld the adequacy of those allowances.

In the subsequent trial on the merits, the plaintiff sought a divorce, and the defendant sought separate maintenance. The trial court granted the plaintiff a divorce, gave defendant custody of the parties’ child, and ordered plaintiff to pay defendant $175.00 monthly for child support and an additional attorney fee of $750.00 for the trial of the case. Defendant appeals. She here challenges (1) the validity of the decree because it did not specifically rule on her cross-petition for separate maintenance, (2) the sufficiency of credible evidence to support the decree, and (3) the adequacy of allowances.

At the portal of our consideration of the defendant’s appeal we are met with plaintiff’s motion to dismiss the appeal for defendant’s failure to comply with Supreme Court Rule 83.05(a) (2), and (c) V.A.M.R. Defendant did not respond to the motion to dismiss her appeal by seeking a continuance or asking leave to amend her brief. The motion was taken with the case. Rule 83.05(a) (2) requires that a brief shall contain: “A fair and concise statement of the facts without argument;” (c) provides: “The fair and concise statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. * * * ”

In her statement of facts the defendant used more than two printed pages of her brief to relate her own testimony as to the plaintiff’s alleged misconduct. By contrast, in reference to plaintiff’s testimony as to defendant’s alleged misconduct, she has only this to say: “ * * * they were constantly fighting and bickering and that she had used physical violence on him.” In fact, the plaintiff had testified that defendant (a) struck him on frequent occasions, raked her nails across his face, threw ash trays and other objects at him, broke his glasses and threatened to stab him, (b) wanted him to change his place of residence and practice, over his protest, (c) told him that he was useless, not fit to live with her and was more or less just a country hick, (d) told him on numerous occasions that she hated him, (e) did not keep a clean house, (f) frequently accused him of being unfaithful, (g) told other persons that plaintiff tried to kill her, (h) made numerous and harassing telephone calls to him at his place of employment, (i) ordered him out of the house on several occasions, (j) used profanity, (k) that their son was present on most of these occasions, and (1) defendant would tell their son that plaintiff was no good, was useless, and not a good husband or a good father. This omitted evidence was of the essence of the case, and vital to the questions presented here for determination. Further, the defendant’s statement of facts is interspersed with references to other parts of plaintiff’s evidence as being “confusing”, “vague”, “uncertain”, “a jumble of unexplained reasoning” and “razzle dazzle.” In sum, the defendant’s statement of facts was unfair and argumentative ; and it did not state the evidence which was relevant to the issues presented on appeal. It clearly violated the cited rule. See the case of Kleinhammer v. Kleinhammer, Mo.App., 225 S.W.2d 377, l. c. 378 [1], holding that even under a liberal interpretation of the new rules concerning appeals such an omission is fatal to the appeal, and quoting from the case of Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282, l. c. 283: “ * * * And a statement which omits the essential facts on which an appellant’s adversary relies cannot be deemed a substantial compliance with said rule. * ⅜ * ” (Now Mo.Sup.Ct. Rule 83). See also Jacob Dold Packing Co. v. General Box Co., Mo.App., 186 S.W.2d 216, 217; and Turner v. Calvert, Mo., 315 S.W.2d 118 [1],

The purpose of Rule 83.05(a) (2) and (c) is tersely stated in Wipfler v. Basler, Mo., 250 S.W.2d 982(3):

“The statement of facts * * * is primarily to afford an immediate, accurate, complete and unbiased understanding of [the] facts of [the] case * * ⅝ ”

The rules of appellate practice are intended to facilitate the work of the court and litigants in order that the issues may be pre-sénted and considered in an orderly manner. Those who seek to have their cases reviewed should substantially comply with those rules. See Walker v. Thompson, Mo., 338 S.W.2d 114(9, 10). In that case, the Supreme Court followed its early holding in the case of Sullivan v. Holbrook, 211 Mo. 99, l. c. 104, 109 S.W. 668, l. c. 670, where it said:

“The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to be obeyed, they should be done away with once for all. A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it — the very ones it should not injure. If the rules in question stand for something and are ever to be enforced, they should be put in motion in this case.”

See also Jacobs v. Stone, Mo., 299 S.W.2d 438, l. c. 440 [2, 3]; and Ambrose v. M. F. A. Co-Operative Ass’n of St. Elizabeth, Mo., 266 S.W.2d 647, l. c. 648.

Because the defendant’s brief shows such a clear violation of our. rules, we have decided that the plaintiff’s motion should be sustained and the appeal dismissed. Mo. Sup.Ct. Rule 83.09 so directs “unless good cause is shown or the interests of justice otherwise require.” In finding against that contingency we adopt the language of the Kansas City Court of Appeals in the Kleinhammer case, supra, 225 S.W.2d 377, l. c. 378-379:

“Appellant has not shown good cause and we are convinced, from a careful examination of all of the evidence in the transcript, that the interests of justice do not require us to act otherwise. On the other hand, we think that this case falls peculiarly within the rule announced many times by the appellate courts of this state that, in divorce suits, great deference should be paid to the finding of the trial judge, who had the parties and the witnesses before him and was in a much better position to judge of their credibility than is this court. This record discloses that throughout the trial an earnest effort was made by the learned trial court to ascertain the facts.”

This appeal should be dismissed, and it is so ordered.

ANDERSON, P. J., and WOLFE, J., concur.


text:
    Louis SCHWARZE and Bernice Schwarze, his wife (Plaintiffs) Respondents, v. MAY DEPARTMENT STORES, d/b/a Famous-Barr Company (Defendant) Appellant.
    No. 30899.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motions for Rehearing or to Modify Opinion or to Transfer to Supreme Court Denied Oct. 15, 1962.

      Dearing, Richeson & Weier, Samuel Richeson, Hillsboro, for appellant.
    Earl R. Blackwell, Hillsboro, for respondents.
   HARRY A. HALL, Special Judge.

This is an action for malicious prosecution of a civil action wherein plaintiffs had judgment for $250 actual damages and $10,-000 punitive damages against defendant May Department Stores, d/b/a Famous-Barr Company, from which judgment the defendant has appealed.

The suit is based upon the filing of a second suit on an account owed by the plaintiffs to defendant, after plaintiffs had paid the account in full. Plaintiffs had a charge account with the May Department Stores, which had grown to an indebtedness of $169 over a nine-month period during which plaintiffs had made no payments on the account. The defendant’s attorney, Maurice Frank, referred the account for collection to Irvin Emerson, an attorney in Jefferson County, who wrote plaintiffs December 9, 1958, advising them that the account had been referred to him for collection and demanding payment. Plaintiffs made no response and Emerson then filed the first suit on the account July 6, 1959, in the Magistrate Court, returnable July 23, 1959. Upon receipt of the summons, plaintiffs went to Emerson’s office and requested an adjustment on the account because of a mis-alteration of two suits purchased by Mr. Schwarze. Emerson advised them that they would have to take up the adjustment with the defendant, and they went to the defendant’s store in St. Louis on July 22nd and paid the account in full, including interest and costs. On the following day they went to the Magistrate Court and showed their receipt to the judge, who continued the case to July 30th because of Emerson’s absence.

Plaintiffs testified that they returned to Emerson’s office on July 30th and showed him the receipt, whereupon he told them he would dismiss the case. The Magistrate record shows the suit dismissed without prejudice by Emerson on that date.

Mr. Emerson testified to the contrary, stating that he was engaged in the investigation of a murder case as assistant prosecuting attorney and did not see the plaintiffs on the 30th nor know that the account had been paid or the suit dismissed, and was not advised of the payment by the defendant; that because of his duties as assistant prosecuting attorney, several cases, including this one, escaped his attention until the following January when he first learned it had been dismissed without prejudice.

Emerson assumed the suit had been dismissed when he failed to appear and refiled the suit on the identical account January 4, 1960, on his own initiative, advancing the filing fee, without notice or other communication with any person connected with the defendant company. Plaintiffs were again summoned and came to Emerson’s office and advised him they had paid the account in full and showed him the receipt. Over defendant’s objection, plaintiffs testified Emerson told them he “had instructions to refile the suit.”

After this visit, Emerson verified the payment of the account and dismissed the suit on the return date, January 21, 1960.

It further appears that defendant referred all its accounts in Jefferson County to Emerson for collection, and that it had failed to notify him prior to the second suit that plaintiffs had paid their account. Emerson received his fee for the collection on January 29, 1960, after he had dismissed the second suit.

Appellant’s first contention is that Emerson’s authority to collect the account from the plaintiffs was terminated when plaintiffs paid the account in full, with costs, and presented the receipted bill from the defendant to him as proof of that fact, and that the court erred in failing to direct a verdict for the defendant at the close of the evidence.

Under the law, the relation between attorney and client is highly fiduciary in its nature and in a limited and dignified sense it is essentially that of principal and agent. 5 Amer.Jur. p. 286, Sec. 45; Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999 (K.C.C.A.). In Henderson v. Cape Trading Co., 316 Mo. 384, 289 S.W. 332, loc. cit. 334, the court said:

“Looking to the first ground stated, we should, of course, bear in mind that ‘the relation of attorney and client is a relation of agency, and in its general features, is governed by the same rules which apply to other agencies.’ Mech-em on Agency (2d Ed.) § 2150.”

It is equally well settled that where the purpose of an attorney’s employment has been accomplished, the relationship terminates and his authority as the agent and representative of his client ceases. In Konta v. St. Louis Stock Exch., 150 Mo.App. 617, 131 S.W. 380, 382, (St.L.C.A.), the court held:

“However, as to matters pertaining to litigation, the presumption is that, except for the purpose of receiving ■ notice of appeal or of a similar proceeding for review in the particular suit, the relation of attorney and client ceases to exist when final judgment is given. And, if one relies upon notice to an attorney in those circumstances, he must affirmatively show that the attorney continues to represent the client to whom notice is thus sought to be conveyed.”

See also Fernbaugh v. Clark, supra.

In 5 Am.Jur., p. 284, Sec. 43, the rule is stated as follows: “ * * * the relation of attorney and client is terminated by the accomplishment of the purpose of its creation, and that no act of the attorney can bind his client thereafter, * * When the account was paid by plaintiffs and knowledge of the payment given to Emerson, as plaintiffs testified, and the suit dismissed, Emerson’s authority to proceed with the collection terminated and the defendant would not be liable for his subsequent actions unless a new agency relationship was initiated.

While we must review the evidence in the light most favorable to plaintiffs, giving them the benefit of all favorable evidence and favorable inferences, nevertheless plaintiffs are bound by their evidence that the purpose of Emerson’s original employment had been accomplished and that Emerson had been so advised by them. Nor can they avail themselves of Emerson’s evidence or any inferences to the contrary which would conflict with their theory of the case. Burnett v. St. Louis Public Service Co., Mo., 337 S.W.2d 921; Batson v. Ormsbee, Mo.App., 304 S.W.2d 680.

As stated in Giambelluca v. Missouri Pacific R. Co., Mo., 320 S.W.2d 457, 474:

“ * * ⅜ if a party in full possession of his mental faculties testifies unequivocally and understanding^ to a material fact peculiarly within his own personal knowledge, which negatives his right of action or defense, he is precluded from relying upon any testimony to the contrary, unless he gives some reasonable explanation of his previous statement * * ⅜.”

Upon the filing of the second suit a strong presumption arose in favor of Emerson’s authority to initiate the action. In Miller v. Continental Assur. Co. of America, 233 Mo. 91, 134 S.W. 1003, 1004, the court said “ * * * there is a strong presumption that, where a party appears in a court of record by a duly licensed and practicing attorney, the attorney was duly authorized to appear and represent such party in said court.” See Cochran v. Thomas, 131 Mo. 258, 33 S.W. 6.

This presumption cannot be aided by plaintiffs’ testimony that Emerson told them he “had instructions to refile the suit.” The law is well settled that neither the fact nor scope of agency can be established by the declarations of the alleged agent, and Emerson’s statement was not admissible to prove that he was acting within the scope of his employment as defendant’s agent and attorney in filing the second suit. The admission of this evidence over the defendant’s objection was error. Rosser v. Standard Milling Co., Mo., 312 S.W.2d 106; State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W.2d 638.

When the evidence disclosed that Emerson refiled the suit on his own initiative in the mistaken belief that the first suit had been dismissed because of his absence from the Magistrate Court when the cause was called for trial, the burden of proof rested on plaintiffs to prove Emerson’s authority to act for the defendant in filing the second suit. As stated in Fernbaugh v. Clark, supra, (163 S.W.2d l. c. 1005): “Where the relationship of attorney and client is asserted to exist, and it being denied by the attorney and the alleged client, the burden of proof certainly rests upon the party making the claim of such relationship.” See also Miller v. Continental Assur. Co., supra.

In view of the particular circumstances of this case and the fact that Emerson represented the defendant in all its collections in Jefferson County and had this particular collection referred to him by the defendant, we rule that the question of Emerson’s agency presented an issue for the jury and we hold that the court did not err in overruling defendants’ motions for directed verdict.

Appellant next assigns error in the giving of instructions 1,2, 3,4 and 7 offered by the plaintiffs, in that each assumes that Emerson was the agent of the defendant and all of them fail to require the finding of the jury on this contested issue.

Whether Emerson instituted the action as the authorized agent of the defendant or filed it on his own initiative, under the erroneous assumption that it had been dismissed when he failed to appear, was a matter for the jury’s determination, and it follows that the instructions in question were erroneous in failing to present this issue to the jury. The defendant’s instructions A and B properly presented the agency issue to the jury and it was error to refuse them.

The other assignments raised by appellant relate to trial procedure which should not arise at a second trial and, therefore, will not be considered on this appeal.

For the reasons assigned, this judgment is reversed and the cause remanded.

ANDERSON, P. J., and WOLFE, J., concur.


author: JOHN J. KELLY, Jr., Special Judge.

text:
    Neva KINNARD, Plaintiff-Respondent, v. PLASTICS MOULDING COMPANY, a corporation, Defendant-Appellant.
    No. 30680.
    St. Louis Court of Appeals. Missouri.
    Sept. 18, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 15, 1962.
    Evans & Dixon, John F. Evans, St. Louis, for appellant.
    Courtney S. Goodman, Michael B. Ger-shenson, St. Louis, for respondent.
   JOHN J. KELLY, Jr., Special Judge.

This appeal, which came to the writer on reassignment, is from a judgment of the Circuit Court of the City of St. Louis entered on behalf of the plaintiff below in the sum of Four Thousand Eight Hundred ($4,-800.00) Dollars.

The action commenced by the respondent, hereinafter referred to as the plaintiff, was originally in two counts: one count for personal injuries sustained by the plaintiff while in the employ of the appellant, hereinafter referred to as the defendant, and the second count for loss of services and consortium. The jury returned a verdict on Count One for the plaintiff in the amount of $6,000.00 which was reduced by th" trial court to $4,800.00, and found for the defendant on Count Two of the petition. The defendant filed its appeal from the judgment on Count One of the Petition, and no appeal was taken from the judgment on Count Two of the petition.

The plaintiff’s petition alleged that from sometime in 1952 until about May of 1956 she was an employee of the defendant, a corporation owning and operating a plastics manufacturing company producing various plastic products, and that during all of her period of employment she operated a mould-ing machine which used melamine plastic and phenolic plastic in powdered form; that in the use of said powdered plastics great quantities of plastic dust were caused to be created and generated, and that this dust came in contact with her hands, wrists, arms, and neck, causing her to be rendered ill and to suffer a severe dermatitis, as a result of which she was caused to lose wages and income in the sum of approximately $2,500.00 up to the time of trial; that her ability to work and earn a livelihood was permanently and greatly impaired and diminished, and that she had been caused to suffer pain, discomfort, itching, etc., and that all of these losses and complaints were permanent and would continue well into the future. The grounds of negligence pleaded were that the defendant had failed to provide the plaintiff with a reasonably safe place to work in that defendant failed to eliminate or control the dust created in the manufacturing process to which plaintiff was exposed; that defendant failed to eliminate or control noxious fumes and gases and dust created and emitted in the manufacturing process in-which plaintiff was engaged; that defendant failed to provide plaintiff with adequate and protective garments and work clothing, including gloves, so as to prevent plaintiff from being unnecessarily exposed to dangerous and noxious dust, gases, and fumes from the plastic materials with which she worked; that defendant failed to instruct or warn plaintiff as to the dangers of her work and the means of avoiding such dangers; that defendant assured plaintiff that it was safe to work around and with said plastic materials when defendant knew or should have known that it was not; that defendant negligently allowed and permitted plaintiff to work around and with the plastic materials when defendant knew or should have known that such materials were dangerous and likely to cause injury, illness, or disease to plaintiff and defendant knew or by the exercise of ordinary care should have known that said injury, illness or disease would get progressively worse if plaintiff continued to work around and with the plastic materials.

Defendant’s answer admitted that it was a corporation operating a manufacturing company producing plastic products and that the plaintiff for some time prior to May, 1956, was an employee of defendant as a machine operator. Defendant denied all other allegations of plaintiff’s petition. As an attack on the jurisdiction of the court, defendant pleaded that the exclusive jurisdiction of the plaintiff’s claim was under the .Workmen’s Compensation Law of the State of Missouri and that therefore plaintiff could not maintain this cause of action. Defendant further pleaded by way of estop-pel that prior to the filing of this suit the plaintiff had filed with the Division of Workmen’s Compensation a claim for the same injuries here in issue, and that therefore plaintiff was estopped from maintaining this cause of action.

The evidence viewed in the light most favorable to the plaintiff was that the defendant at all times relevant to the issues in this trial was a corporation engaged in the manufacture of plastic products and plaintiff was employed by the defendant as a moulding machine operator. In the performance of her duties plaintiff was required to use certain plastic powders which created dust which came in contact with her hands, wrists, arms and neck. While working at the moulding machine the plaintiff was in a standing position. She had a board with holes in it, and it was a part of her job to scoop plastic powder from a can by means of a scoop onto the board and into the holes in the board; she would then level the plastic powder in the holes and then dust the residue off of the board. When the holes in the board were evenly filled, the board would then be placed in the hot moulding machine, a small handle on the bottom of the board pulled to release the plastic powder into the moulds, and the moulding machine closed by means of a lever. The powder would then undergo heat of approximately 290 degrees Fahrenheit for one and one-half to two minutes, after which the doors of the moulding machine would then be opened and the finished plastic product removed from the moulding machine. While so engaged the plaintiff wore cotton gloves with cuffs extending beyond the wrists on each hand. During her entire period of employment by the defendant, the plaintiff performed no other duties than those of a moulding-machine operator, and she worked with no other plastic powders than the powders brought to her at a table near the particular moulding machine she operated.

The room in which plaintiff worked was a large one in which there were twenty to twenty-five moulding machines, and the particular shift on which she was employed had fifteen or sixteen operators working at the same time. Plaintiff’s evidence was that she worked with two different plastic powders, one a white powder and the other a black or brown powder. These powders were identified as a melamine and phenolic plastic powder, both purchased from a reputable manufacturer of plastic powders. Melamine is a powder with a hydrocarbon base, its exact formula a trade secret known only to the manufacturer, containing some formaldehyde, and the phenolic plastic powder has a base of phenol and formaldehyde.

Plaintiff entered the employ of defendant on July 17, 1953, and after working about two months noticed a redness of her skin underneath her gloves and around her wrists. Within two or three months this condition spread to her forearms and neck. Her neck cleared up almost immediately but her arms and hands became worse, breaking out with small blisters which caused an itching and burning sensation and which extended to the elbow of her right arm and two or three inches above the wrist on the left arm. Plaintiff tried home remedies for a time and wore bandages for the oozing from the blisters. Finally she reported the condition to her foreman, who referred her to the company doctor for treatment. The company doctor treated her with shots and medicines for approximately three months without relieving the symptoms, and then referred her to a skin specialist. Under the treatment of the skin specialist the condition completely cleared up and she was discharged from further treatment. Two months thereafter the skin condition reappeared and she went to her own family physician for three and a half months, after which she was again referred to the company doctor, under whose care she remained for a month. By March, 1957 the skin condition had completely cleared, and up to the time of trial she had not noticed any recurrence.

Plaintiff called as her witness the general manager of the defendant, a graduate chemical engineer who was in charge of the plant operation. He stated that there was nothing harmful about phenolic or melamine plastics except in the case of one allergic to such compounds, but that he had read that any plastic might cause skin disorders or irritations to persons allergic to them.

Plaintiff’s medical testimony was to the effect that melamine and phenolic plastics are “potential irritants”; that formaldehyde is a primary irritant. Medical witnesses produced by both the plaintiff and the defendant diagnosed the plaintiff’s skin condition as a chronic industrial dermatitis due to exposure to the plastic powders she used in her work as a moulding machine operator in defendant’s business. Dr. To-bias, a dermatologist had prepared a bibliography of scientific articles published between 1935 and 1959 relative to the effects of plastic powders on skin diseases for the plaintiff, and over defendant’s objection plaintiff’s counsel was permitted to read into evidence and without any further development of the contents the title of two articles: “L. Schartz — Dermatitis from Synthetic Resins — Jour. Inv. Dermatology —6:239” and “Occupational Diseases of the Skin — Schwartz—Tulipán-—-Peck Leas and Febiger — Phila.”

Plaintiff, through the testimony of four of her co-employees, offered evidence that at no time during the course of her employment had defendant kept posted in a conspicuous place in its plant a notice of its election to accept the Occupational Disease Amendment of the Missouri Workmen’s Compensation Law, Section 287.060 RSMo 1959, V.A.M.S.

Plaintiff submitted her case to the jury on the theory that the defendant in the exercise of ordinary care knew or should have known that the plastic powders used by the plaintiff in the course of her employment as a moulding machine operator were reasonably likely to cause injury to the employee’s skin; that in the course of her employment for the defendant the plaintiff had to handle and come in contact with such harmful plastic powders; that by reason thereof defendant failed to furnish plaintiff with a reasonably safe place in which to work; that defendant did not warn plaintiff that the plastic powders could have a harmful effect upon her skin and did not advise her of any precautions to be taken to avoid such harmful effect. The court also instructed the jury in Instruction No. 7 that it was the duty of the defendant to exercise ordinary care to discover the nature and general characteristics of the substances in its business with which its employees were caused to come in contact in their work; and that if the jury believed that the plastics mentioned in evidence were harmful to the skin of some of the defendant’s employees and that there existed, for a long time prior to the time plaintiff sustained the injuries complained of, scientific knowledge of the harmful effects of such powders which could have been obtained by the defendant in the exercise of ordinary care, then the defendant was charged with such knowledge and it was no defense to the defendant that it did not have actual knowledge that the powders were harmful to its employees.

Defendant complains that the trial court erred in (1) overruling its motion for a directed verdict and in failing and refusing to direct a verdict for the defendant; (2) in permitting plaintiff to read into evidence portions of plaintiff’s Exhibit 2 (the bibliography prepared for plaintiff by Dr. To-bias) ; (3) in reading to the jury Instruction No. 7; (4) in permitting one of the medical witnesses to testify that the plastic powders here involved had a high degree of sensitivity, that they constituted “potential” irritants, and that plaintiff’s skin condition was caused by exposure to these ingredients; (5) in permitting plaintiff to introduce into evidence Exhibit No. 3: Employer’s and Insuror’s Answer to Plaintiff’s Compensation Claim; (6) in excluding the testimony of defendant’s plant manager, George Rieman, that to his knowledge no other employee except the plaintiff had ever developed a skin irritation from handling the plastic powders and that none of them had made complaint or requested medical treatment for any such condition; (7) that the amount of the verdict, even after reduction by the trial court, is excessive.

It is well settled that it is the duty of an employer to exercise reasonable precaution to protect his employee against injury while engaged in the employer’s business, and the employer is under an obligation to inform himself of those matters of scientific knowledge possessed by men of general education relative to the dangers and hazards involved in the use of substances and processes used in his employment, and to acquaint his employees with those dangers to which, in their ignorance, the employees might otherwise be subject, Marsanick v. Luechtefeld, Mo.App., 157 S.W.2d 537, l. c. 541. The defendant contends that there is no substantial proof that defendant knew or by the exercise of ordinary care could have known that the plastic powders with which the plaintiff worked were reasonably likely to cause injury. For the plaintiff to make a submissible case under the theory she adopted, the trial court had to find sufficient evidence of defendant’s knowledge, either actual or constructive, of the dangerous properties of the plastic powders used by plaintiff in the performance of her duties as a moulder prior to the time plaintiff sustained the injuries for which she here sought recovery.

Plaintiff called as her witness the general manager of the defendant. This witness, a graduate chemical engineer, testified that he had some knowledge that these powders used by the defendant might cause irritation to the skin of persons allergic to them. He testified that the powders were purchased from a responsible manufacturer and that their exact chemical composition was a “trade secret.” He did know, however, that they contained phenol and formaldehyde in their constituent elements.

Plaintiff also called as witnesses medical experts, one of whom testified that the powders were “potential irritants” and that the medical profession has known for some years that powders used in the plastic industry could cause irritation to the skin. This same witness, a dermatologist, had prepared for the plaintiff a “bibliography” of articles on the dangers of plastic powders. Over objection, the plaintiff’s attorney was permitted to read into the record the titles of two of these articles: “Dermatitis from Synthetic Resins * * * ” and “Occupational Diseases”, supra, without any further comment. This was apparently done for the purpose of showing constructive knowledge on the part of the defendant and a failure of defendant to carry out its duty to inform itself of those matters of scientific knowledge possessed by men of general education relative to the dangers and hazards involved in the use of substances and processes used in the course of the employment. However, the admission into evidence of this type of evidence was prejudicially erroneous inasmuch as it was not sufficiently identified to show that it contained information relative to the particular powders here in issue, and for the further reason that it was not shown that these articles contained “scientific knowledge possessed by men of general education” but rather that this was a medical bibliography. The record is devoid of any evidence that these articles were known to the trade generally, or that they were even available in the area. We do not believe that a plastic manufacturer is held to scientific knowledge possessed by the medical profession, and have not found a case which so holds. In Evinger v. Thompson, 364 Mo. 658, 265 S.W.2d 726, the court held that the employer was not held to knowledge available only to those having a special acquaintance with the subject involved. In this case, specialists in the field of dermatology might be expected to be familiar with the medical treatises the titles of which were read to the jury by plaintiff’s counsel, but no employer is charged with this specialized knowledge unless it be shown that he had actual knowledge of the articles. Plaintiff relied on the case of Braun v. Roux Distributing Company, Mo., 312 S.W.2d 758, but that case, a products liability case, is not controlling in a master-servant case. The Supreme Court said in the Roux case, at page 763 of 312 S.W.2d:

“ * * * in manufacturing and distributing hair dye, the appellant is held to the skill of an expert in that particular business, ‘to an expert’s knowledge of the arts, materials and processes,’ and is bound to keep reasonably abreast of scientific knowledge and discoveries concerning his field and, of course, is deemed to possess whatever knowledge is thereby imparted.”

This same degree of skill is not required of an employer.

The plaintiff failed to offer substantial evidence that the defendant had either actual or constructive knowledge of the dangerous properties of the plastic powders used in the defendant’s business, and therefore defendant’s motion for directed verdict should have been sustained and judgment entered for the defendant in the trial court.

In view of the action of the court it is unnecessary to pass upon the other allegations of error raised by the defendant.

For the reasons stated heretofore the judgment of the trial court is reversed and this cause is hereby remanded with instructions to the trial court to enter judgment for the defendant.

ANDERSON, P. J., and RUDDY, J., concur.

WOLFE, J., not participating.