author: RUDDY, Presiding Judge.

text:
    Lorraine GRUHALLA, (Plaintiff) Respondent, v. GEORGE MOELLER CONSTRUCTION COMPANY, a Corporation, and Reverend Vincent Naes, (Defendants) Appellants.
    Nos. 31537, 31538.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 14, 1965.
    Application to Transfer Denied July 12, 1965.

      W. Munro Roberts, Jr., Theodore D. Pon-fil, Heneghan, Roberts & Cole, St. Louis, for appellant George Moeller Const. Co.
    John S. Marsalek, Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant Rev. Vincent Naes.
    James F. Koester, St. Louis, David G. Dempsey, Clayton, for respondent Lorraine Gruhalla.
   RUDDY, Presiding Judge.

This is an action for damages for personal injuries sustained by plaintiff when she tripped in a depressed or recessed area and fell while leaving St. Cecelia’s Catholic School. Plaintiff recovered a judgment for $8850 against both defendants, namely, Reverend Vincent Naes and George Moel-ler Construction Company, a corporation. Defendants’ motions for judgment were overruled but their motions for a new trial were sustained and the court set the judgment aside. Thereafter, the court entered an order setting aside the prior order granting a new trial and entered an order overruling defendants’ motions for directed verdict or in the alternative for a new trial.

In her amended petition plaintiff alleged that the defendant George Moeller Construction Company was engaged in the construction of St. Cecelia’s Catholic School in the City of St. Louis; that the construction of said building had been commenced and that said defendant was the agent, servant and employee of defendant, Reverend Vincent Naes; that on November 12, 1959, when said building had not as yet been completed plaintiff was on the premises of said school as a business invitee for the purpose of attending a meeting and while on said premises was using a vestibule or exit way from said school; that the interior of said vestibule was dark and dingy and contained therein a hole or opening ⅛ the floor of the said vestibule or exit way and that plaintiff was thereby caused to fall upon the said hole or opening in the said floor and was caused to sustain great physical injury. The negligence alleged in said amended petition was that said defendants maintained said vestibule or exit way in a condition that was dangerous and not reasonably safe; that they failed and omitted to eliminate or correct the dangerous condition.

Plaintiff further alleged that defendants were negligent in allowing the public to use said place which was dark, dingy and not reasonably safe; in failing to provide illumination at or near said exit way or vestibule and in failing to warn her of said condition.

Plaintiff further alleged that defendants in the exercise of ordinary care could have provided a barrier, guard rail or other type of protection in the area of the hole or opening in the said floor and thus and thereby have avoided said fall and injury to the plaintiff.

We shall refer to Reverend Vincent Naes as Father Naes and to George Moeller Construction Company as Moeller. The only evidence offered on the part of the defendants was the reading of parts of the building contract which will be referred to later. All other evidence was offered by plaintiff during her case.

The entire property belonging to St. Cecelia’s Catholic Church occupies an entire city block bounded on the north by Eichel-berger Avenue, on the south by Eiler Avenue, on the west by Louisiana Avenue and on the east by Alaska Avenue.

The Archbishop of the City of St. Louis holds the legal title to the property. The church building is located at the southeast corner of the block and the rectory at the southwest corner. Prior to June 1958 the old school was located on the corner of Louisiana and Eichelberger. Father Naes was Pastor of the parish under appointment by the Archbishop and had supervision and control of the church, school and parish.

In the summer of 1958, the construction of a new school and auditorium, sometimes referred to in the testimony as gymnasium, was commenced on the northeast corner of the city block, namely, Eichelberger and Alaska. A contract for the erection of the building was made with Moeller and was signed by the Archbishop and Father Naes. While the new school was being constructed the children attended the old school. During the summer of 1959, the old school was torn down. In September of 1959, the children started to attend the new school.

The new building consisted of a ground floor which was even with the sidewalk and two stories above the ground floor. There were a number of entrances to the school building, but the one involved in plaintiff’s accident faced Eichelberger Avenue to the north. It consisted of two glass doors and on each side of the glass doors were narrow fixed glass panels. Father Naes testified that the area of glass in the doors and panels was 72 square feet, and in the vestibule inside of the entrance doors were three lights which could be turned on by use of a three way switch. The doors entered into a vestibule, and from the doors to two steps which ascended to a hallway was a distance of six feet from north to south. This hallway led to a room referred to in the testimony as the Youth Room. In the vestibule there was a recessed area in the floor, approximately four by eight feet in size, which was designed to hold a rubber mat. Plaintiff estimated the depth of the recessed area at one to one and one-half inches. Father Naes testified that the depth by actual measurement was one-half inch. He also testified that the recessed area was constructed in conformance with the building contract. Father Naes further testified that there were a lot of items considered furnishings which were excluded from the building contract and were to be furnished by the parish. Included in the items considered furnishings were the rubber mats which were to be furnished by the parish and included in them was the rubber mat for the recessed area in question. Father Naes testified that approximately one year before the mat was needed he ordered it from a supply house. He further testified that when the contractor had finished with that area of the building, a mat was delivered but was found to be of an incorrect size. This mat was taken back by the company that furnished it and the salesman for said company measured the space again and between that time and the time of plaintiff’s injury Father Naes had asked the mat supply company for delivery of the mat many times without success.

At the time plaintiff fell there was no rubber mat in the recessed area at the bottom of the stairs. There were no ropes or barricades preventing the use of the exit way and there were no signs warning of the depression. When plaintiff came out of the Youth Room where the meeting was held the day of her fall, there were no lights in the hall. However, she said she had no difficulty seeing the steps as she approached the exit way. There was no artificial lighting in the vestibule at the exit door but plaintiff testified that there was sufficient light coming in through the glass door for her to have good vision.

Father Naes testified that there was no attempt to place anything in the recessed area in lieu of the mat, further testifying that the area is well lighted by means of the glass panel and the glass door. He said that some time between the opening date of school and the time of plaintiff’s fall he told Mr. Fred Ruck, foreman for Moeller, he felt that the recessed area was dangerous and that he thought something should be placed in the area in question.

Plaintiff alleged in her petition that defendant Moeller was the agent, servant and employee of defendant, Father Naes, in the construction of said school building and that on the occasion of plaintiff’s fall the construction of said building had not as yet been completed. Parts of the building contract for the construction of the school and gymnasium were read into evidence and the pertinent parts relative to the time the construction of the school and gymnasium was to be completed for occupany were as follows: “The school and gymnasium shall be completed for occupancy by April 1,1959, the balance of the work shall be completed by July 1, 1959.” Another provision under the general specifications in said contract provided that the owner will have the right to take possession of and use any completed or partially completed portions of the structure or work notwithstanding the time for completing the entire work may not have expired. At the time of his testimony Father Naes said he was not familiar with the latter provision of the contract. In this connection plaintiff testified: “Q. But the school itself and the entrance way or exit way where you were leaving the building that day had been fully constructed and in use for a period of some two months, is that not correct? A. Possibly.”

Father Naes testified that some time prior to the opening of the school season he asked the contractor whether he could get in the building and thereafter he gave the “go ahead” for the school to be used by the students. He did not relate the conversation he had with the contractor. Father Naes testified to the preparation of a check list, evidently prepared by him and the contractor, Moeller, for the completion of little items in the building. Some of these items on the check list were not completed and were still to be performed at the time of plaintiff's fall. He was asked, “And you have no recollection whatsoever of any items being on the check list in this exit area, there was nothing to be done in there?” He answered, “I cannot recall the check list.”

When the court asked Father Naes whether the workmen for the construction company were still performing tasks in the actual area itself within the school, “that is the area where the action occurred,” he answered “Your Honor, I could not say whether they were specifically in that area doing anything of the check list that date.” However, he did testify that with reference to the items on the check list, that Moeller had not completed the check list at the date of the accident and that some of the items were completed after the accident. There was no further testimony as to whether or not any of the items on the check list concerned the vestibule and the recessed area.

Plaintiff was a member of the St. Cecelia’s Parish at the time of the accident and had been for approximately four years. During that time she had attended church and had been on the property belonging to the parish. Plaintiff has a child who was attending the parish school and who had attended the old school before it was torn down and thereafter attended the new school. Plaintiff testified that she was active in the Council of Catholic Women and attended their meetings which were held in the school building. She was a co-leader in a group of girls known as the Brownies. This group consisted of girls eight to eleven years of age. She said that the Brownie organization operated under the auspices of the Girl Scouts of America. Prior to the meeting held at the time of plaintiff’s accident, the Brownie group had always met at someone’s home.

Plaintiff was asked by the court: “Now, do Brownie troops have organization sponsors like the Boy Scouts and Girl Scouts do?” and she answered, “I don’t know.” The court again asked, “Do you know of your own knowledge whether or not this particular Brownie Troop had a sponsor or an organization sponsor, a church or school or anything of that nature” and she answered, “No, I really don’t.” Each child in this Brownie group was a member of St. Cecelia’s Parish. Plaintiff had been active in the Brownie group for one year prior to her accident. She said that the Brownie group always began their meetings and ended the meetings with Catholic prayers.

On the date of plaintiff’s accident, namely, November 12, 1959, the Brownie group held a meeting in the new school. Plaintiff said this was the first Brownie meeting held in the new school and said that the purpose of the meeting was to practice for the children’s one year celebration and the holding of their regular Brownie meeting. In connection with the purpose of the meeting plaintiff gave the following testimony: “Q. You were not attending any religious service at the time ? A. No, sir.” She said she was just attending a Brownie meeting and there was no other purpose in being there other than “we were practicing for their one year celebration, which was going to be held there. Q. That was the sole purpose of being there? A. That’s right. Q. This is not a function directly connected with the school? A. No.” She said the nuns who operate the school had no control, function or connection with the Brownie meeting. She further testified: “Q. There was no business connection of any kind, was there, between this meeting and Father Naes? A. No.” She said that Mrs. Ghig-lione who was the leader of the Brownie group informed her that the meeting was to be held in the school on that particular afternoon. When asked if Father Naes had any control over the Brownie organization and whether he ever attended any meeting or collected any money she answered, “I wouldn’t know.” She was not personally aware of what arrangements had been made whereby the Brownie group was permitted to use the Youth Room and she did not know whether there was any payment made to Father Naes for use of the room. She could not say whether or not Father Naes had given permission to use the Youth Room.

Plaintiff further testified that she arrived for the meeting about 3:25 P.M. and left at about 4:45 P.M., at which time it was “beginning to get dark.” There were no artificial lights lit at the exit way leading onto Eichelberger Avenue. She had never used this particular exit way before, stating that she came in the entrance door facing Alaska Avenue. As stated before, she testified that there was sufficient light coming in the exit door and panels to provide good vision. When leaving the meeting room she walked down the hall toward the Eichelberger entrance with the children around her, ahead of her and to her side, together with some other adults who had attended the meeting. As she was descending the steps, heretofore described, she did not recall looking down but said she was looking ahead. She said she was unable to see the landing at the bottom of the steps, obviously meaning the vestibule floor, and as she proceeded toward the exit door her foot struck something which caused her to fall forward and out of the exit door, landing on her right elbow outside of the building. We have left out some of the testimony she gave concerning her approach to the door and concerning her fall for a reason that will become obvious. When she reached the landing at the bottom of the steps she did not know that she was in tile recessed area and she did not know this until her “left foot hit something, an extension or something, whatever that, abutment, or whatever it was that stuck up.” She said that at the time she fell she did not know precisely what caused her to fall until later when she went back into the building.

Father Naes testified that some years previous to the day of the accident he had given permission to the Brownie group to meet in the school. He said that no specific permission had been given by him for the particular meeting, after which the accident occurred, but added, that it “probably was included in a general permission given for them to meet.” He said that all of the members of the Brownie group were members of his parish". Father Naes said that he was the pastor of the parish, including the church and school and that the whole school and parish were under his supervision and control. He said the Brownie organization paid nothing to him or to the parish for the use of the school facilities. When asked “Did you exercise any supervision, control or direction over the operation of the Brownie group ?” he answered, “No more than permission that they could use the premises, perhaps specifying the time.” He said that he had no business connection or any business function with the Brownie group on November 12, 1959. He said that some 10 or 12 organizations in the parish used the Youth Room or the gymnasium or other facilities of the school and parish and that it is all done with his permission. Some of the organizations permitted to use the aforesaid facilities contribute money to the parish and some of them raise funds for the school, but that the Brownies do not contribute any funds to the parish. When Father Naes was asked if the Brownies were beneficial to the church and school and to him as Pastor, he said, “Beneficial in the sense that these ladies who take care of the Brownies are following the Brownie rule which is beneficial for society in general, including a Catholic parish.”

Both defendants assert many specifications of error by the trial court but the primary one among the points relied on is the contention by both defendants that the trial court erred in overruling their motions for a directed verdict at the close of the entire case and their after trial motions for judgment. In this connection they assert that there was no evidence that plaintiff was a business invitee of Father Naes as she alleged. It is their contention that the evidence disclosed, without controversy, that plaintiff’s status at the time of her injury was that of licensee, using the school building gratuitously, and not for any purpose of real interest and benefit to Father Naes. Both defendants allege that under such circumstances plaintiff was not entitled to recover.

Our first discussion will be with respect to the relationship existing between the plaintiff and Father Naes and what care and duty he owed the plaintiff. Of course, a determination of this relationship must be found in a perusal and an analysis of the facts as heretofore outlined.

The decisive question presented in this point, according to the authorities hereinafter cited, is whether plaintiff was there for her own purpose or for some purpose of real benefit or interest to Father Naes. Twine v. Norris Grain Co., Mo.App., 226 S.W.2d 415, l. c. 422. In determining this question we feel that it can be assumed that plaintiff was on the school premises with the permission and implied consent of Father Naes. Plaintiff has the burden of showing that her presence on the premises would result in some real benefit to Father Naes. Argus v. Michler, Mo.App., 349 S.W.2d 389, l. c. 394, 93 A.L.R.2d 776.

Plaintiff’s theory of recovery at the trial can be found in her petition and instructions. In her petition she alleged that “plaintiff was on the premises at St. Cecelia’s School as a business invitee for the purpose of attending a meeting.” And in her instructions she hypothesized facts which, if found by the jury to exist, imposed upon the defendants the duty owed an invitee by an invitor as an occupier or possessor of property.

No claim was made below, nor is any now asserted, that defendants’ negligence was of that degree that would render them liable to plaintiff if she was a mere licensee. (“ * * * wantonness, or some form of intentional wrong or active negligence * * *”), Argus v. Michler, supra, (349 S.W.2d l. c. 390); Stevenson v. Kansas City Southern Ry. Co., 348 Mo. 1216, 159 S.W.2d 260, 261(1). A bare licensee (barring wantonness, or some form of intentional wrong or active negligence by the owner or occupier) takes the premises as she finds them. Wolfson v. Chelist, Mo., 284 S.W.2d 447; Mo.App., 278 S.W.2d 39, 45, 47; Twine v. Norris Grain. Co., supra, 226 S.W.2d l. c. 420. But, as said in Argus v. Michler, supra, (349 S.W.2d l. c. 392) quoting from Glaser v. Rothschild, 106 Mo.App. 418, 80 S.W. 332, 221 Mo. 180, 120 S.W. 1, 22 L.R.A.N.S. 1045, as to a business visitor: “ ‘the situation, with reference to liability, radically changes when the owner invites the use of his premises for purposes connected with his own benefit, pleasure, and convenience. * * * ’ in which event the occupier’s duty is to use ordinary care to prevent injury.”

While we have said that it can be assumed that plaintiff was on the school premises with the permission and implied consent of Father Naes, the mere fact of such an implied invitation alone is not sufficient to make one an invitee in the legal sense. Mere permission without more involves “leave and license,” but bestows no right to the care due an invitee. Glaser v. Rothschild, supra, 221 Mo. l. c. 185, 120 S.W. 1; Stevenson v. Kansas City Southern Ry. Co., supra; Twine v. Norris Grain Co., supra, 226 S.W.2d l. c. 420; Kalinowski et ux. v. Young Women’s Christian Association, 17 Wash.2d 380, 135 P.2d 852; McNulty v. Hurley, Fla., 97 So.2d 185; Glaser v. Congregation Kehillath Israel, 263 Mass. 435, 161 N.E. 619.

In Wolfson v. Chelist, Mo., 284 S.W.2d 447, l. c. 450, the court said:

“The word ‘invitation’ here has been a source of difficulty because of an apparent incongruity in terminology inasmuch as the ‘invited’ social guest is held to be not an invitee but a licensee. We have here an invitee who is not an invitee. The incongruity, only apparent, disappears, however, when it is understood it has been thought there must be something more than the mere fact of an invitation to give the entrant upon another’s property the status of an invitee in a legal sense. Having an invitation, we are concerned with what kind of an invitation it is. What are its terms? To what place are we invited? For what purpose are we asked to come there?”

In the case of Glaser v. Rothschild, supra, 221 Mo., l. c. 184-185, 120 S.W. 1, the general rule is stated that the owner or occupier of the premises lies under no duty to protect those from injury who go upon the premises as volunteers or merely with his express or tacit permission from motives of curiosity or private convenience in no way connected with business or other relations with the owner or occupier. Such persons are mere licensees. Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820; Stevenson v. Kansas City Southern Ry. Co., supra; Argus v. Michler, supra; Connole v. Floyd Plant Food Co., Mo.App., 96 S.W.2d 655; Roe v. St. Louis Independent Packing Co., 203 Mo.App. 11, 217 S.W. 335; McNulty v. Hurley, supra; Comeau v. Comeau, 285 Mass. 578, 189 N.E. 588, 92 A.L.R. 1002; Glaser v. Congregation Kehillath Israel, supra; Prosser on Torts, 3rd Ed. p. 385.

But, as pointed out in the Glaser case, and as we quoted heretofore, the situation with reference to liability changes when the owner invites the use of his premises for purposes connected with his own benefit, pleasure and convenience.

Simply and concisely stated, an invitee in the legal sense is one who is invited into the premises of the owner or occupier for some purpose connected with the business in which the owner or occupant of the premises is then engaged or for any other purpose beneficial to the owner or occupant. To establish such relationship (of invitee and invitor) there must be some real benefit to the invitor or mutuality of benefit or interest in the subject to which the invitee s business or purpose relates. Wolfson v. Chelist, Mo., 284 S.W.2d 447; Porchey v. Kelling, supra; Stevenson v. Kansas City Southern Ry. Co., supra; Argus v. Michler, supra; Twine v. Norris Grain Co., supra; Connole v. Floyd Plant Food Co., supra; Roe v. St. Louis Independent Packing Co., supra; DeMello v. St. Thomas The Apostle Church Corp., 91 R.I. 476, 165 A.2d 500; Kalinowski et ux. v. Young Women’s Christian Assn., supra; Prosser on Torts, 3rd Ed. pp. 394-395.

As heretofore stated, it is the purpose for which a person visits the premises of another which determines whether he is an invitee or a licensee. Therefore, we examine the evidence to determine what purpose plaintiff had in visiting the school building on the occasion of her accident. Plaintiff visited the school building for the purpose of attending the meeting of the Brownie group which was the first Brownie meeting held in the new school. Prior to this meeting it seemed that the Brownie meetings had been held in the homes of the members of the group. Plaintiff had a child who was a member of the Brownie group and there is no doubt that the activities of the plaintiff as a co-leader in the Brownie organization were for the purpose of assisting her young daughter in acquiring practices of discipline and good citizenship. We say this because the evidence shows that the Brownie organization operated under the auspices of the Girl Scouts of America, an excellent and fine organization devoted to teaching young girls their obligations to country and fellow man.

Plaintiff attended this meeting in the new school for the sole purpose, and no other, to practice for “their one year celebration,” as she put it, and in addition to hold their regular Brownie meeting. She said that she was not attending a religious service at the time; that the meeting was not a religious service and that there was no other purpose in being there at the time in question, except to practice for their one year celebration and to hold the regular Brownie meeting. She admitted that this was not a function directly connected with the school and expressly said that the meeting had no business connection of any kind with Father Naes and that neither he nor the nuns of the school had any control, function or connection with the meeting. The evidence shows that Father Naes exercised no supervision or control over the Brownie organization. While she testified that the Brownie group always began the meetings and ended the meetings with Catholic prayers, there is nothing in the evidence to show that this practice was urged by Father Naes or that he attempted to control it in any manner. There is no evidence to show that Father Naes ever attended any of the meetings of the Brownie organization. No payment of any kind was ever made by the Brownie group to Father Naes or to the parish for the use of the school. In this connection plaintiff did not know what arrangements had been made by the Brownie group to use the Youth Room for their meeting. The only thing she seemed to know was that she was told of the meeting place by Mrs. Ghiglione, the leader of the group. Plaintiff did not know whether the Brownie group had a sponsor, such as a church or school or anything of that nature and there was nothing to show that the St. Cecelia Parish or Father Naes in any way sponsored the Brownie organization.

The testimony of Father Naes, given in plaintiff’s case, shows that he had no business connection or any business function with the Brownie group and that he did not sponsor it or exercise any control or supervision over the organization. He did admit giving the organization permission to use the Youth Room for their meetings for which they paid nothing. When asked if the organization was beneficial to him and to the church and school, he said, it was in the sense that the ladies who take care of the Brownies are following the Brownie rule which is beneficial to society in general and, therefore, to his Catholic parish.

We find nothing in the evidence in this case to show that plaintiff was a business invitee on the school premises on the occasion of her accident. This was admitted by plaintiff and it is clear that the Brownie meeting did not perform a business function, as the term is understood, and was completely without a business purpose. Further, we feel that the evidence fails to show that the purpose of plaintiff’s visit to the school premises on the day of her accident was beneficial to Father Naes and failed to show that any real benefit within the contemplation of the law of invitee and invitor was conferred upon Father Naes on this occasion.

In the case of Argus v. Michler, supra, the defendant admitted that one of the reasons he maintained a telephone in his filling station premises was because someone might come in and use it and end up buying a set of tires. We said that the mere possibility someone using this telephone, maintained by defendant for convenience of his customers, might buy something was too speculative to constitute a real benefit to the defendant and we held that the plaintiff was not a business invitee of the defendant.

A case somewhat analogous to the instant case is Roe v. St. Louis Independent Packing Co., supra. In that case plaintiff, a 15 year old boy, was a member of the Y.M.C.A., and as such, was a member of an observation class, the purpose of which was the instruction of the said boys by taking them to visit various manufacturing plants in the City of St. Louis, and thus enable them to see various processes of manufacture carried on. The instructor of the class wrote to the general manager of defendant asking permission to bring a group of boys through defendant’s plant. The general manager of defendant replied by letter that it would be entirely satisfactory. On their visit the defendant furnished them with an employee to show them through the different departments. After being shown the slaughtering process, the boys were taken to the ice manufacturing plant operated by the defendant and while there plaintiff fell into a tank of hot water and was severely burned. The crucial question in the case was whether or not the plaintiff was a bare licensee or invitee. The trend of plaintiff’s argument in support of his contention that he was an invitee was that the advertising of one’s business is the best means of increasing business; that a recognized practical method of advertising, and one of the best means for increasing business is to get the general public to visit the mercantile or manufacturing plant for the purpose of acquainting them with the modern hygienic system of conducting same, as well as familiarizing the visitor with each department and the operation thereof; that the boys themselves who visited the plant some day may be customers but, in addition, that they will talk among their friends and sound the praises of the things that impressed them as they went through the various establishments which they visited.

In rejecting this argument the court pointed out that the sole object of the visit was the instruction of the boys and held: “In light of the undisputed testimony in this case it is clear to us that plaintiff must be regarded as a bare licensee, and not as an invitee.” (217 S.W. l. c. 337).

As pointed out by defendant, Father Naes, the education of the boys in the Roe case was of benefit to the general public and thus directly and remotely to the defendant. Similarly, in the instant case plaintiff’s visit may have benefited society in general but such benefit was too remote to constitute a real benefit to Father Naes.

For other factual situations wherein the court found no real benefit or interest to the defendant, see Twine v. Norris Grain Co., supra; Connole v. Floyd Plant Food Co., supra.

Plaintiff contends that the evidence in this case shows that she entered the school premises with the permission of Father Naes and that she did not enter out of any motive of curiosity or private convenience unconnected with her relationship to Father Naes in the parish. Thus, she said, she was not a mere licensee but an invitee.

As we have pointed out, the rule is otherwise. The authorities cited hold that mere permission without more bestows no right to the care due an invitee. As said in the case of Wolfson v. Chelist, supra, there must be something more than the mere fact of an invitation to give the entrant upon another’s property the status of an invitee in a legal sense. The cases all hold that there must be some real benefit to the invitor.

Plaintiff next contends that she did not enter the school for her own benefit but as a volunteer leader or teacher of the Brownie troop in the parish. She says the parish has both spiritual and secular objectives and as co-leader of the Brownie troop she was promoting the secular, if not the spiritual objectives, of the parish in developing practical skills and good traits of character. From this she concludes that there was a direct benefit to Father Naes in her visit to the school. This contention fails to find support in the evidence. The Brownie group was not sponsored by the parish or by Father Naes. This was admitted by plaintiff in her testimony. She says that, in fact, her presence did benefit the “unworldly business” of the school and, therefore, was of benefit to Father Naes. We have pointed out that it was the burden of plaintiff to show that her presence on the premises would result in some real benefit to Father Naes. This, we rule, she has failed to do.

In support of this contention plaintiff cites a number of cases from other jurisdictions. We have examined these cases carefully and find they do not support plaintiff’s contention. They differ in the facts. In most of the cases the plaintiffs therein were performing church duties clearly beneficial to the church. In another instance plaintiff was a teacher at the invitation of the church authorities and in the case of Kalinowski v. Young Women’s Christian Assn., supra, plaintiff was a worker for the defendant. In the case of Manning v. Noa, 345 Mich. 130, 76 N.W.2d 75, 77 A.L.R.2d 955, cited by plaintiff, the plaintiff was atttending a bingo game sponsored by the church and had paid an admission price of $1.00. The only issue decided by the court was whether or not it would permit plaintiff to use her own illegal conduct as a foundation of her claim that she was on defendant’s premises as an invitee.

While we have shown no real benefit inured to Father Naes, we do not mean to infer that if plaintiff had been attending a spiritual or religious gathering, whether through an implied or express invitation, a benefit would have inured to the invitor, Father Naes. Plaintiff was not attending a spiritual or religious exercise of the parish and we need not rule on such a situation. We mention this situation because plaintiff relies on the case of Weigel v. Reintjes, Mo.App., 154 S.W.2d 412, decided by this court. In that case plaintiff was attending church devotions at the Rock Church in the City of St. Louis and while there was caused to fall and suffered injuries. In the course of the opinion the writer said, “[pjlaintiff was an invitee upon the premises of defendant, * * (154 S.W.2d l. c. 416). No point was raised by the defendant in that case involving plaintiff’s status or her relationship to the defendant. Defendant did not raise a point wherein it was contended that plaintiff was not an invitee. The statement by this court was wholly unnecessary to a decision and, therefore, was pure dicta, which plaintiff concedes. For this and another reason, the case is not controlling in the instant situation. In the Weigel case plaintiff was in the act of entering the church to attend a religious service which presents a different factual situation than is present in the instant case.

Plaintiff’s final contention in the area of the present discussion is that it is not necessary to decide if a real benefit inures to Father Naes because he provided a large building that was “semi public” in nature and, therefore, plaintiff had the right to expect the school premises to be safe or that she be warned of any unsafe condition. She asks, in effect, that because of the alleged “semi-public” nature of the building that this constitute an exception to the general rule and cites language in the cases of Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, and Wolfson v. Chelist, Mo., 284 S.W.2d 447, 451, in support of her contention. In the Paubel case the court in discussing the reciprocal legal rights of the possessor of land and one thereon said they are affected, among other factors, by “the legal relationship existing between the parties * * *; and by the nature of the business conducted on (whether of a public or private nature) * * * the premises; and by the object and purpose of the person’s presence on the premises; * * (96 S.W.2d l. c. 373). Relying on such language and somewhat similar language in the Wolfson case, plaintiff wants to avoid the determination of plaintiff’s relationship to the defendant, Father Naes, as a licensee and, regardless of her purpose on the premises and her manner of entry thereon, hold said defendant to the duty that would normally flow to an invitee. Neither of the cases cited support such an exception. The language relied on by plaintiff in the cases cited merely states some of the factors to be considered by the court in determining whether or not plaintiff is an invitee or a licensee. As pointed out by Father Naes, a guest who accepts the use of the premises as a gift accepts the gift as it is and if the guest is there for her own purpose solely, there can be no legitimate basis for engrafting an exception on the general rule that makes her a bare licensee. In connection with this contention it should be pointed out that it is not in accord with plaintiff’s trial theory. As we have said, plaintiff’s petition alleged that she was a “business invitee” and she followed the same theory in her instructions to the jury. This contention constitutes a departure from her trial theory.

We rule that plaintiff was not an invitee of Father Naes and was a mere licensee. No claim was made by plaintiff in her petition of wanton, wilful, intentional or active negligence which would permit plaintiff to recover as a licensee; nor is any such claim now asserted, nor does her evidence show any such negligence. Therefore, the trial court erred in overruling Father Naes’ after trial motion for judgment.

The findings and ruling we have made as to Father Naes should be made as to Moel-ler. In her petition plaintiff’s theory of recovery against Moeller was that she was on the premises of St. Cecelia’s School as a business invitee of Father Naes for the purpose of attending a meeting and in her verdict directing instruction against Moel-ler she hypothesized facts which, if found by the jury to exist, required it to find that Father Naes owed a duty (as an invitor) to plaintiff to exercise ordinary care to keep the premises in a reasonably safe condition for use. Therefore, having found that the evidence shows plaintiff was a mere licensee and that Father Naes was not charged with the duty imposed on an in-vitor as an occupier or possessor of property, plaintiff has failed to produce proof necessary to support the verdict directing instruction against Moeller. In this connection it is well to point out that plaintiff has failed to introduce any evidence that she had any dealing or relationship with Moeller. Therefore, Moeller only owed to the plaintiff the same duty owed by an occupier or possessor of land to a licensee.

Plaintiff suggests that we should adopt the position that whether she was a licensee or invitee, she shared the same status as the person who invited her to the school, namely, Father Naes, pointing out that Moeller owed to Father Naes and his employees the duty to exercise ordinary care during the course of its construction work. Plaintiff cites four cases in support of this suggestion. However, a reading of these cases shows that they involve landlord-tenant or contractor-servant situations and, therefore, have no application to the facts in the instant case. She cites no case in point. Plaintiff’s theory of recovery in her petition and at the trial in her instruction was that it was through the duty owed her by defendant, Father Naes, that defendant, Moeller, owed her a duty to exercise ordinary care and this was based on a necessary finding by the jury that plaintiff was an invitee and not a licensee. It would also seem that another reason exists why Moeller should have no greater liability than Father Naes and the reason can be found in the statement contained in Restatement of the Law of Torts, § 384, p. 1024, wherein it is said:

“One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to the same liability, and enjoys the same immunity from liability, as though he were the possessor of the land, for bodily harm caused to others within and without the land, while the work is in his charge, by the dangerous character of the structure or other condition.”

As will be seen, this rule applies while the contractor is still in charge and control of the work. In this connection we feel that plaintiff has failed to show by her evidence that Moeller had charge and control of the school and especially did she fail to show that the area in which she was injured was uncompleted. Assuming, without so holding, that Moeller still had work to do in the school, under this rule said defendant is only subject to the same liability as Father Naes and enjoys the same immunity from liability as does Father Naes.

Plaintiff’s final contention as to Moeller is that under the facts in evidence it was for the jury to determine whether there had been such an acceptance, either formal or constructive, of said defendant’s work as an independent contractor that would relieve said defendant of further responsibility as a contractor. Plaintiff contends the evidence shows that Moeller had not completed all his work under the contract. She points to the existence of the check list of unfinished items and the testimony indicating some of Moeller’s men were working in the building. For this reason, she contends that it was for the jury to determine whether there had been a constructive acceptance of the building by Father Naes. Under this theory of recovery she wants the court to ignore her status as a licensee on the school premises.

In connection with this contention urged by plaintiff, “The general rule is that the contractor, after an acceptance of the work by the owner, is not liable to third parties, who have no contractual relations with him, for damages subsequently sustained by reason of his negligence in the performance of his contract duties.” Casey v. Wrought Iron Bridge Co. (Hoover), 114 Mo.App. 47, 89 S.W. 330, l. c. 334; Begley v. Adaber Realty & Investment Company, Mo., 358 S.W.2d 785, 791; Cummings v. Halpin, Mo.App., 27 S.W.2d 718; White v. City of Springfield, 189 Mo.App. 228, 173 S.W. 1090; 65 C.J.S. Negligence § 95, pp. 613, 614. All of the aforesaid cases contain facts that show final or formal acceptance of the work. There seem to be no cases in the State of Missouri that refer to a constructive acceptance of the work such as we seem to have in the instant case. The rationale of the rule is that if the contractor has turned the work over and it has been accepted by the owner or possessor of the property, the contractor incurs no further liability to third parties by reason of the condition of the work. The responsibility is then shifted to the owner or possessor and there is no longer any privity of contract between the independent contractor and strangers or third parties and, therefore, no further duty on his part as to them.

The rule that acceptance of a contractor’s work relieves him of liability to third persons does not mean that there must be a formal acceptance. There may be a constructive acceptance of the work. The rule in this regard is that the acceptance that is required by the owner or possessor of the work of a contractor, in order to relieve the contractor of liability for injuries to third persons after the acceptance, is a practical acceptance after the completion of the work, a formal acceptance not being required. As stated, while we find no cases in Missouri on this rule, there is abundant authority elsewhere. We cite some of the cases. Haynes v. Norfolk Bridge and Construction Co., 126 Neb. 281, 253 N.W. 344; Memphis Asphalt & Paving Co. v. Fleming, 96 Ark. 442, 132 S.W. 222; Donaldson v. Jones, 188 Wash. 46, 61 P.2d 1007; Rengstorf v. Winston Bros. Co., 167 Minn. 290, 208 N.W. 995; Clyde v. Sumerel, S.C., 104 S.E.2d 392; Wilson v. North Central Gas Co., 163 Neb. 664, 80 N.W.2d 685.

In a reading of the aforesaid cases the basis of the principle of law that holds the contractor liable relates to the control or right to control that he has over the premises on which he is working. We think the basis of the rule regarding a contractor’s liability can be found in the language used by the court in Wilson v. North Central Gas Co., (80 N.W.2d l. c. 687): “It was indispensable to any recovery in this case that appellant (plaintiff) show by evidence that appellee (contractor) was at the time of the accident in control of the premises upon which appellant was injured. * * * ‘The burden was upon the plaintiff to establish that the contractor was yet in charge and control of the work at the time of the accident.’ ” (Parentheses ours).

Charge and control of the work on the premises at the time of the accident must be shown before a recovery may be had by plaintiff. Plaintiff fails to recognize that the burden of establishing that Moeller was yet in charge and control of the work at the time of the accident belongs to her. In her brief she states that Moeller does not attempt to show that there has been a formal acceptance. Of course, the burden is on her to show that there has not been an acceptance and that the contractor is still in control of the premises, particularly the area in which she fell. We think plaintiff has failed to sustain this burden.

It -is undisputed that Father Naes had the right to take possession and use of any completed or partially completed portions of the school building notwithstanding the time for completing the entire work of the building of the school and gymnasium may not have expired. Father Naes said the recessed area where plaintiff fell was constructed in conformance with the building contract. It must be remembered that all of the testimony was given in plaintiff’s case and was given by plaintiff’s witnesses. Father Naes further testified that when the contractor had finished with the recessed area of the building, it was his obligation and not that of the contractor to furnish the rubber mat that would be placed in the recessed area. Moeller • had no duty or obligation under the building contract to furnish the rubber mat. It is reasonably inferable from Father Naes’ testimony that the vestibule and the recessed area had been completed by the contractor. Plaintiff in her testimony was asked: “Q. Now, at the time you had attended this Brownie meeting on November 12th, the new school was completed and in use, was it not, the children were attending the new school?” and she answered, “Yes, sir.” When asked if the school itself and the entrance way or exit way where she was leaving the building that day had been fully constructed and in use for a period of some two months, she answered, “Possibly.”

-It is reasonably inferable from Father Naes’ testimony that pursuant to his right under the building contract to take possession of and use any completed or partially completed portion of the structure, that he took possession and control of the school at the beginning of the school season, namely, September 5th, 1959. It was after he had consulted with the building contractor that he gave the “go ahead” for the school to be used by the students. Pursuant thereto the children started to attend the new school in September of 1959 and were so attending for a period of approximately two months prior to plaintiff’s fall and injury. While the testimony disclosed the existence of a check list, that is, certain unfinished items, there was nothing in the testimony to show that any of the unfinished items pertained to the vestibule or the recessed area.

Plaintiff has failed to establish that Moeller was still in charge and control of the work and particularly that part of the premises where plaintiff was injured. The evidence is.to the contrary. It shows that Father Naes assumed the use, occupancy and control of the school building and ordered the school to be opened and the school had been opened and in use for two months prior to plaintiff’s accident and injury. Furthermore, there is no evidence to show that any of the items on the check list pertained to the area way or vestibule in question and, as heretofore pointed out, the responsibility for obtaining the rubber mat was that of Father Naes. This contention is ruled against plaintiff. Of course, as we have pointed out, this contention is contrary to plaintiff’s theory of pleading and trial.

The evidence is insufficient to sustain the judgment against Moeller in the trial court. Therefore, the trial court erred in overruling defendant, Moeller’s, after trial motion for judgment.

The judgment against both defendants is reversed and the cause is remanded with directions to the trial court to sustain the after trial motions of both defendants for judgment and to enter judgment for both defendants.

WOLFE, J., and FRANK W. HAYES, Special Judge, concur.


source: Caselaw Access Project

author: HUNTER, Judge.

license: Public Domain

text:
    Richard LEGLER, Plaintiff, v. Don R. MERIWETHER and Pat Mueller, Defendants. Pat MUELLER (Kennish), Defendant and Third-Party Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Third-Party Defendant-Respondent.
    No. 24205.
    Kansas City Court of Appeals. Missouri.
    April 5, 1965.
    Motion for Rehearing and for Transfer to Supreme Court Denied June 7, 1965.
    Application to Transfer Denied July 12, 1965.

      Elwyn L. Cady, Jr., Kansas City, for plaintiff.
    Carl E. Enggas, Darrell L. Havener, Clayton R. Smalley, Kansas City, for defendants.
   HUNTER, Judge.

This appeal arises out of an action for alleged malpractice. Richard Legler, plaintiff, filed suit in the sum of $1,047,687.25 against Don R. Meriwether, a physician and Pat Mueller, a registered nurse, appellant, for their alleged negligence on December 7, 1961, in administering the anesthetic while plaintiff was undergoing an operation. Appellant called on United States Fidelity & Guaranty Company, a corporation, referred to as U.S.F. & G., to assume her defense under a certain insurance policy. Upon its refusal and disclaimer of coverage, as third party plaintiff, appellant interpleaded by third party petition U.S.F. & G. as third party defendant alleging its policy obligated it to provide her defense and to pay any judgment Legler might obtain against her and that by its refusal to do so.she had been caused to engage her own attorneys, investigators and specialists to defend. U.S.F. & G. filed its verified answer to the third party petition denying that appellant was insured under or covered by the mentioned policy of insurance, and moved for summary judgment, supported by affidavits. Before the trial court had an opportunity to rule on the motion, the principal action involving malpractice was settled and the petition dismissed with prejudice. Appellant did not participate in or know of the settlement until after it was made and until after the dismissal with prejudice of the petition. It is her position she had incurred substantial expenses in employing her attorney and her experts in preparing to defend and that she is entitled to reimbursement of these expenses by U.S. F. & G. The trial court sustained the motion for summary judgment and entered judgment for U.S.F. & G. This appeal followed.

The parties concede it is the law that a summary judgment should not be granted unless it clearly appears that there is no genuine issue as to a material fact. It is appellant’s contention that there was a genuine issue of fact and that the trial court erred in granting the summary judgment. Appellant further contends the trial court should have granted partial summary judgment to her and have proceeded to docket the cause for trial on the issue of damages resulting from U. S. F. & G.’s failure to defend.

We proceed to set out from the record that which bears on the question of whether there was a genuine issue of fact. In so doing we adhere to the rule that on a motion for summary judgment the record must be viewed in the light most favorable to the party against whom the summary judgment is sought. Civil Rule 74.04; Cooper v. Finke, Mo.Sup., 376 S.W.2d 225.

Don R. Meriwether is one of four medical doctors practicing as partners under the name “Hugh S. Mathewson, M.D. & Associates”. These partners in 1961, until September 17th, were insured by U.S.F. & G. pursuant to general liability insurance contract No CGL 251037 and during the remainder of 1961, including December 7, 1961, by subsequent Policy No. CGL 251373. Appellant was not named as an insured in either policy. Both of these policies contained the following definition of insured: “III. Definition of Insured. The unqualified word ‘Insured’ includes the Named Insured and also includes any executive officer, director or stockholder thereof while acting within the scope of his duties as such, and any organization or proprietor with respect to real estate management for the Named Insured. If the Named Insured is a partnership, the unqualified word ‘Insured’ also includes any partner therein but only with respect to his liability as such.”

Appellant by affidavit stated the facts upon whieh she relies as making her an insured and giving her coverage under the the policy and further stated this would be her testimony in the trial of her cause. We quote her statement in full: “In about July, 1961, Hugh S. Mathewson, on behalf of Hugh S. Mathewson and Associates (“the Group”), approached me about working for the group as a nurse anesthetist. In response to my inquiry about employment benefits, he said that “it was a real good thing to work there because a doctor was always standing behind you * * * with words of advice * * * and you were included in the group liability policy” in those words or words substantially the same. He said they (“the Group”) would pay my liability insurance and would cover me in their group liability policy.

“Other employment situations with which I was in touch did not have the group liability coverage which I considered a substantial benefit in choosing employment. Because of the attractiveness of the offer made by Dr. Mathewson, I cancelled a previous job offer and went to work for the Group in about August, 1961.

“It was common knowledge among the nurse anesthetists and other employees of the Group, and it was expressly and repeatedly stated to us who were nurse anesthetists by the Group, that we nurse anesthetists were fully covered by professional liability insurance by a policy carried in the name of the Group which would afford each of us coverage so long as we remained in the employ of the Group and so long as we were practicing anesthesia at St. Luke’s Hospital, or elsewhere, if and as directed by a partner of the Group.”

It is appellant’s legal theory that she was covered by the mentioned insurance policy (CGL 251373) for the reason that under the presented facts Dr. Mathewson must be deemed to be the agent of U. S. F. & G., and this because (1) the Missouri rule in group insurance is that the employer is agent for the insurance company, and (2) U. S. F. & G. is estopped to deny that coverage under an existing group policy was afforded her.

It is respondent’s contention that assuming the truth of all the “facts” as set out in appellant’s affidavit and the other uncontroverted facts related herein there remained only a question of law which the trial court correctly decided in respondent’s favor resulting in the summary judgment for respondent.

While a summary judgment is not to be granted unless it clearly appears there is no genuine issue as to a material fact, there may be a formal issue presented by the pleadings but shown by affidavit or otherwise not to be genuine. Civil Rule 74.04 (e); Durasteel Co. v. Great Lakes Steel Corp., 8 Cir., 205 F.2d 438, 441; Committee Note, Civil Rule 74.04. A summary judgment should be rendered if the pleadings, depositions, and admissions on file, together with the affidavits show there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. Civil Rule 74.04(c).

Appellant does not claim she was a named' insured under the professional liability policy issued to the partnership. Uncontro-verted affidavits of Insurer and Dr. Mathewson state that Dr. Mathewson occupied only the position of an insured and had not been authorized in any manner to act as agent of the insurer. Appellant’s entire theory of coverage is premised on the legal effect of the alleged representations made to her by Dr. Mathewson as set out in her affidavit. Her specific contention, as mentioned, is that in group insurance the employer is agent for the insurance company.

“Group Insurance” as that term is generally understood is a contract of insurance whereby a group of persons, usually employees of a business concern, in consideration of a flat periodical premium are insured so long as he or she remains in such employment and the premiums are paid. See, Couch on Insurance, (2d Ed.), Section 1:54, page 69. The insurance contract in the instant case is not of the above described “Group Insurance type and we need not determine the rules that might apply to that type of contract. See, 29A Am.Jur., Insurance, Section 1766, page 840; 1 Apple-man, Insurance Law and Practice, Section 43, page 56, note 6, and Missouri cases cited there. Rather, it is a partnership liability insurance contract insuring the named partners against malpractice exposure. It does not purport to include as assureds any employees of the partners. So viewed it is clear from this record that Dr. Mathewson was not actually or impliedly authorized by the insurance company to add employees’ names as insureds under the policy. See, 3 Am.Jur.2d, Agency, Sections 17, 18, pages 428-29.

Bluntly restated, appellant’s contention is that simply because she was told by a member of the insured partnership that she was a named insured and relied thereon that she became an insured. This is unsound for it would result in holding that because a partner in a partnership is insured this in and of itself makes him an agent of the insurance company, authorized to bind it without its knowledge or consent on a contract not otherwise giving such coverage and for which coverage it received no premium. We know of no rule of law that would result in such a holding, and find no merit in this contention of appellant.

Appellant’s other contention is that the insurance company was estopped to deny coverage. This, too, is without merit and for two reasons. First, it is the law that while estoppel may prevent an insurer from asserting a defense to coverage otherwise provided by an insurance policy it cannot be used to create insurance coverage where it would not otherwise exist. Blew v. Conner, Mo.App., 310 S.W.2d 294, 303, Mo.Sup., 328 S.W.2d 626; 16 Appleman, Insurance Law & Practice 629 ; 29A Am.Jur., Insurance, 289 ; 45 C.J.S. Insurance § 616. Second, the doctrine of estoppel contemplates the estopped party misrepresents a material fact, and it is the insured partner, not U.S.F. & G., who is alleged to have made the misrepresentation. State ex inf. McKittrick, ex rel. City of California v. Missouri Utilities Co., 339 Mo. 385, 96 S.W.2d 607, 614-615, 106 A.L.R. 1169. See, especially, 1 Appleman, Insurance Law and Practice, Section 43, page 57, note 8. While appellant has not extended her estoppel contention to include estoppel by U.S.F. & G. to deny the agency of Dr. Mathewson, we note there is no claim that U.S.F. & G. did anything to create the appearance upon which third parties could rely and believe that such agency had been authorized.

The trial court did not err in entering its summary Judgment for respondent. The judgment is affirmed.

All concur.

      . All Civil Rule citations are to V.A.M.S.


author: WOLFE, Acting Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, (Plaintiff) Appellant, v. E. A. THURMAN and Dorothy H. Thurman, (Defendants) Respondents.
    No. 31738.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 14, 1965.
    Appellant’s Application to Transfer Denied June 14, 1965.
    Respondents’ Application to Transfer Denied July 12, 1965.
    Raymond S. Roberts, Farmington, for appellant.
    J. B. Schnapp and Roy G. Cooper, of Schnapp, Cooper & Graham-, Frederick-town, for respondents.
   WOLFE, Acting Presiding Judge.

This is an action in condemnation to obtain easements for the construction of a limited access highway known as U. S. 67. The total area of the easement taken from the defendants, with which we are here concerned, amounts to 24.14 acres. The defendants were awarded $3,998 by the Commissioners appointed by the court, and the defendants and the State Highway Commission both filed timely exceptions to the Commissioners’ award. Upon trial there was a jury verdict for defendants for $7,250. From the judgment upon the verdict the plaintiffs, Highway Commission, prosecutes this appeal.

The defendants’ property consisted of a single tract of land containing 572.06 acres. It was used as a cattle farm, and according to defendants’ evidence about 100 acres were cleared and are in pasture. The rest of it is in timber. The land has been cut over, and most of the timber is second growth. There is a county road along the west side of the property, but it is in no way connected with the highway for which this condemnation is brought. There is a creek upon the land and water in several places, including a spring that never goes dry. The defendants do not live upon the land, and there are no buildings upon it. It is all fenced with four strands of barbed wire.

The strip condemned is between 275 and 295 feet in width and runs in a general north and south direction for about 3500 feet. It contains 22.35 acres, and it divides the defendants’ land so that on one side of the right of way there is an area of 509.92 acres, and on the east of the right of way there is an area of 39.79 acres. In addition to the 22.35 acres taken for the highway easement, a total of 1.79 acres were taken for the control of drainage and for maintenance purposes. Field entrances to the highway were provided" for both the 39.79 acres on the east and the 509.92 acres on the west. At the present time only one strip of paving will be laid, but at a later date another strip of the same width may be put in with the entrances preserved and with a cross-over provided.

There was testimony that the only use to which the land was suited was that of grazing cattle, for which it is now used. It was also asserted by defendants’ witnesses that new fencing would be required, and that loading chutes would have to be built in order to load cattle for transportation from one side of the highway to the other. There was also testimony that water gates would be necessary.

The witnesses for the defendants placed the total damage to the land caused by the lost acreage and the division of the area at sums ranging from $10,161 to $10,900. The witnesses for the plaintiff Highway Commission fixed the damages at sums ranging from $3,220 to $3,767. As stated, the verdict and judgment were for $7,250.

The first point urged is that the court erred in its ruling and remarks relating to the defendants’ right of access to the highway. The petition covering all of the defendants named in the condemnation suit contained a paragraph designated number 5, in which it stated: “The right of direct access to, from, and across said part of the highway as herein set out, if any such right now exists, is and shall be extinguished or condemned.” This had no application to the defendants herein for the reason that the highway was a new highway where none had existed before, and consequently there was no existing access taken from these defendants. State ex rel. State Highway Commission v. Clevenger, 365 Mo. 970, 291 S.W.2d 57.

The attorney for the State Highway Commission, in questioning a witness," asked if field entrances to both parts of the divided land of the defendants were provided. The attorney for the defendants objected on the ground that paragraph 5 of the petition above quoted showed that no entrances would be available. Then counsel for the Commission objected to the statement by defendants’ counsel on the ground that it was prejudicial and requested the court to instruct the jury to disregard it. His objection was overruled and his motion denied. The court stated: “Apparently the petition speaks for itself.” The statement by the attorney for the defendants was erroneous. (State ex rel. State Highway Commission v. Clevenger, supra). As a general rule, where a judge expresses his assent to an erroneous statement of law made by counsel, it amounts to a misdirection of the jury and is preju-dicially erroneous. Primmer v. American Car & Foundry Co., Mo.App., 299 S.W. 825.

The foregoing is particularly true in this case for the petition, in a paragraph designated 8.20, provided for a direct field entrance to the highway from the eastern part of the defendants’ land and another from the western part. The plans which were filed with and made a part of the petition showed both field entrances and provision for the building of a cross-over when the future construction of the additional lanes should take place.

During the testimony the Judge stated that the court would not consider the plans, but would be guided only by the petition. He stated that the plans did not correspond with the petition as it related to entrances, and that therefore only the petition would be considered. This was also an erroneous statement, as the -plans were a part of the petition (V.A.M.R. 86.-04), and were not in conflict with any other portion of it. As stated, both field entrances and provision for a cross-over were shown by the plans.

It is asserted that the court erred in sustaining an objection to a question asked by counsel for plaintiff State Highway Commission. The question was as follows: “All right. Now, after that field entrance, when this highway field entrance is there doesn’t that make that land, immediately on the day of taking, more valuable because the highest and best use of it is for some type of commercial use like filling stations and things of that kind?”

The court did not err by sustaining the objection. For this question to have been proper, there would have to have been a commercial entrance provided. The Chief Designer of the Survey and Plan Department of the Commission testified that a commercial entrance differed from a field entrance, for it required a post or curbed island from ten to. twenty feet in depth. No provision for such an entrance was made in the plans, and the court properly sustained the objection.

Other points are raised, but since the matter must be retried for the errors noted, we need not pass upon them as they probably will not occur upon retrial.

For the errors above noted, the cause is reversed and remanded for a new trial.

ANDERSON, J., and R. KENNETH ELLIOTT, Special Judge, concur.


text:
    STATE of Missouri ex rel. Vivian M. LAFFOON, Plaintiff-Respondent, v. Hon. Mark A. YOUNGDAHL, Judge of the Municipal Court of the City of St. Joseph, Missouri, Defendant-Appellant.
    No. 24228.
    Kansas City Court of Appeals. Missouri.
    April 5, 1965.
    Motion for Rehearing and for Transfer to Supreme Court Denied June 7, 1965.
    Application to Transfer Denied July 12, 1965.

      Richard W. Mason, Jr., City Atty., St. Joseph, for defendant-appellant.
    Kranitz & Kranitz, St. Joseph, for plaintiff-respondent.
   HUNTER, Judge.

Vivian M. Laffoon, respondent, was charged with violating on December 5,1963, two traffic ordinances of the City of St. Joseph; namely, careless driving by driving with view obstructed, and failure to yield right of way to an emergency vehicle. The case was docketed for trial in the Municipal Court of St. Joseph on December 9, 1963, and was continued to December 18, 1963.

On December 12, 1963, Laffoon filed a motion titled “Application and Affidavit for a Change of Venue” requesting a change of venue for the reason “that the affiant Vivian M. Laffoon, defendant * * * cannot have a fair and impartial trial before the said Judge on account of his bias or prejudice.” No evidence was presented in support of the application and on December 18,1963, Judge Mark A. Youngdahl, appellant, overruled the motion and set the case for trial.

Respondent Laffoon then filed a petition in the Circuit Court of Buchanan County for an alternative writ of mandamus or in the alternative for a writ of prohibition. The cause was submitted on the pleadings and the circuit court ruled in favor of Laffoon, issuing its judgment of peremptory mandamus ordering Judge Youngdahl to disqualify himself in the municipal court case and to “transfer the said cause as provided in Rule 37.90 and 37.91 of the Supreme Court * * This appeal followed.

The sole question presented by the parties on this appeal is whether Civil Rule 37.90, V.A.M.R. gives the Municipal Court of St. Joseph discretion in ruling on a disqualification application and affidavit alleging prejudice of the judge or whether that rule requires the municipal court judge to disqualify whenever such an application and affidavit is filed.

Civil Rule 37.90 provides: “Judge, Disqualification — In any case pending in any municipal court, the judge thereof shall be deemed incompetent and disqualified to hear and try the case when he is in anywise interested or prejudiced. The judge, of his own initiative, may enter an order disqualifying himself; and he may also disqualify himself under the provisions of this rule if, before the jury is sworn or the trial is commenced, the defendant or the prosecutor files an affidavit that the defendant or tire municipality as the case may be, cannot have a fair and impartial trial by reason of the interest or prejudice of the judge or for other grounds provided by law. Only one such affidavit shall be filed by the same party in the case and such affidavit shall be made as to only one of the judges of said court.”

Our function is to ascertain the intent of the Supreme Court as expressed in Civil Rule 37.90. In so doing we may resort to the usual rules that are considered to be aids in ascertaining legislative intent — i. e., the intent of the body that promulgates the particular rule to be interpreted and applied. The plain, obvious and rational meaning of the language used is always to be preferred over any other, and certainly the Supreme Court in enacting the rule is to be presumed to have had full knowledge of existing relevant conditions and to have expressed itself in the light of those conditions.

Our study of Civil Rule 37.90 has led us to the conclusion that the municipal court judge does have a sound judicial discretion to exercise when the defendant or prosecutor files an affidavit that the defendant or the municipality, as the case may be, cannot have a fair and impartial trial by reason of the prejudice of the judge, and that Civil Rule 37.90 does not divest the municipal court judge of such discretion and require him in every instance to disqualify himself upon the filing of such affidavit.

Our reasons for the above expressed interpretation of Civil Rule 37.90 are several. We think the language used in that rule clearly expresses the intention that the municipal court judge have discretion in ruling on an affidavit of disqualification for alleged bias or prejudice. The rule states the judge “may * * * disqualify himself * * * ” upon the filing of the affidavit. (Emphasis ours.) It does not say he shall disqualify himself upon such filing. The word “may” has the well established meaning of granting discretion. As stated in 82 C.J.S. Statutes § 830a, page 877: “As a general rule the word ‘may,’ when used in a statute, is permissive only, and operates to confer discretion, especially where the word ‘shall’ appears in close juxtaposition in other parts of the same statute.” Webster’s Third New International Dictionary (unabridged) defines “may” as “have permission to * * * used nearly interchangeably with can.”

It is noteworthy that Civil Rule 37.91 provides : “Judge, Disqualification — Another Judge. Whenever a judge is disqualified, said judge shall forthwith make an order transferring and removing the case to another judge authorized by law to hear such case.” Thus, in companion Rule 37.91 the Supreme Court used the word “shall” when it meant to grant no discretion, and we conclude it would have used “shall” instead of “may” in Rule 37.90 if it had meant to grant no discretion.

Comparison of the language used in other rules concerning the disqualification of magistrates and circuit judges also illustrates that when no discretion is intended the word “shall” is used rather than the word “may”. For example, Civil Rule 22.05 (magistrate) provides, “The defendant shall be entitled to a change of venue * * * if he shall * * * file an affidavit * Civil Rule 30.12 (circuit court judge) reads: “ * * * The judge shall be disqualified * * * * * * -the defendant or the prosecuting attorney shall file an affidavit * * *.” Civil Rule 51.03(b) (circuit court judge) states, “If it shall be alleged * * * that the judge is interested or prejudiced * * * the court shall call in another circuit judge * * *.” To the same effect see, Civil Rule 51.06(a) and 51.07, and Sections 98.320(3), 98.023, V.A.M.S.; State v. Mitts, Mo.Sup., 29 S.W.2d 125; State v. Irvine, Mo.Sup., 72 S.W.2d 96.

It is well known and we take judicial notice of the fact that throughout the state of Missouri at the time Civil Rule 37.90 was promulgated there were many municipalities for which there was no provision for a substitute judge in the event the municipal court judge is disqualified. Without undertaking to answer, we pose the question of what would become of those cases where the only municipal court judge is disqualified? See, City of Ava v. Yost, Mo.App., 375 S.W.2d 884. Additionally, the party alleging prejudice, if he loses his case in the municipal court by appealing can obtain a trial de novo in the circuit court. Considerations such as these were undoubtedly before the Supreme Court when it promulgated Civil Rule 37.90 and may be at least a part of the reason why in single judge municipal court jurisdictions the municipal court judge was not required by the rule to disqualify on the mere filing of an affidavit of prejudice.

It is essential to the issuance of a writ of mandamus that the plaintiff or relator have a clear and certain legal right to the relief or remedy sought by the writ. Having reached the conclusion that Judge Youngdahl had a sound discretion to exercise when presented with the affidavit for a change of venue (more accurately, for a change of judge) and in the absence of any showing that he abused that discretion, we are constrained to rule respondent had failed to establish a legal right to the relief sought by the writ and that the circuit court erred in its judgment ordering Judge Youngdahl to disqualify and to transfer the case.

Accordingly, the judgment is reversed.

All concur.


author: CROSS, Presiding Judge.

text:
    KANSAS CITY, Missouri, a municipal corporation, Appellant, v. George A. MARTIN, Respondent.
    No. 24016.
    Kansas City Court of Appeals. Missouri.
    April 5, 1965.
    Motion for Rehearing and for Transfer to Supreme Court Denied June 7, 1965.
    Application to Transfer Denied July 12, 1965.

      Herbert C. Hoffman, City Counselor, James H. Herbert and Timothy D. O’Leary, Asst. City Counselors, Kansas City, for appellant.
    Robert L. Shirkey, Kansas City, for respondent.
   CROSS, Presiding Judge.

This is an action on account wherein plaintiff city seeks to recover of defendant Martin the sum of $3,132.45, with interest, for hospitalization and treatment for nervous and mental disorder at the Psychiatric Receiving Center, a division of General Hospital which is operated by the city. A jury waived trial on stipulated facts resulted in a judgment that plaintiff recover nothing on its petition. Plaintiff appeals.

This case involves the same subject matter which gave rise to a former action in which Martin, as plaintiff, sued and recovered damages from the City of Kansas City, as defendant, for personal injuries resulting from the city’s negligence. The facts and circumstances essential to a determination of this appeal are here noted.

On June 3, 1952, Martin duly notified the Mayor of Kansas City that he was making claim for personal injuries sustained as a result of negligence on the part of the city. Following this notice and on August 27, 1952, Martin filed his original petition for damages in case No. 113,933, at Independence, in Jackson County, styled “George A. Martin v. Kansas City, Missouri and Walter S. Buie”, praying an award of $40,-000.00. This petition was duly answered by the city.

On September 19, 1957, Martin presented himself for treatment at the Psychiatric Receiving Center and was admitted after an interview which tended to establish that he was indigent and unable to pay for the care and treatment he requested. He received medical care and attention as an in-patient until March 21, 1958 for a total of 113 days. Again, as an in-patient, he received care from July 21, 1958, through July 31, 1959, for a total of 80 days. From July 28, 1958 through April of 1959 he received outpatient care aggregating 10 days. Between August 3, 1959 and September 3, 1959 he was given day hospital care for 20 days. It is agreed that the reasonable value of these services totaled $3,100.65 and that no portion of that sum has been paid by Martin.

Thereafter, on October 1, 1959, Martin filed his first amended petition for damages in case No. 113,933, in which he alleged that as a result of the city’s negligence his nerves and nervous system were greatly injured, and that he suffered a nervous breakdown and mental difficulties and required hospital care and treatment as a result therefrom. The pleading contained a prayer for damages in the sum of $150,-000.00. The City of Kansas City timely refiled its original separate answer as its answer to plaintiff Martin’s first amended petition but at no time filed a counterclaim in case No. 113,933.

Martin’s suit for personal injuries proceeded to trial and on October 29, 1959 resulted in a verdict and judgment in his favor against the city (present plaintiff) in the amount of $30,000.00, from which the city appealed to the Supreme Court. During the trial, counsel for defendant interrogated plaintiff in the hearing of the jury as follows:

“Q. (By Mr. Wurdack) This hospitalization you have told us about here in Kansas City at the Psychiatric Research Center, a period of five and a half months a year ago, and a couple of months ago for thirty days, that treatment has been entirely without cost to you, hasn’t it?
“A. (By plaintiff) Yes, sir”.

The above quoted question and answer provoked the following objection by plaintiff’s counsel, ruling of the court and remark of- counsel:

“MR. SHIRKEY: If the court please, he is liable to pay the city should he receive any award in this case, and I object to that question.
“THE COURT: Overruled; he says he has not paid them now.
“MR. SHIRKEY: Of course, he hasn’t, but he is liable to pay them, liable for that should he get a judgment”.

No bill for hospital services was ever presented to Martin or to his attorneys until after his case against the city was tried and reduced to judgment. On January 27, 1960, the city presented its bill of charge to Martin’s attorneys. Such a bill was never presented to Martin personally.

“Sometime” in 1960 the appeal from Martin’s judgment against the city came on for hearing in the Supreme Court and was duly argued and submitted. One of the issues raised by the city was “excessiveness” of the judgment. In the course of argument on the question, counsel for Martin exhibited the city’s hospital bill for $3,-100.65 to the court and the bill was “put in their files”. The result of the appeal was an affirmance of Martin’s judgment as rendered in the trial court.

The original judgment sum of $30,000.00, with accrued interest, appears to have accumulated to “thirty-two some thousand dollars”. The city paid Martin $29,345.05 on the judgment but left the balance outstanding and unpaid. Martin filed a mandamus action against the city to compel it to pay the remaining judgment balance, but the record before us does not clearly disclose the ultimate disposition of that proceeding.

The city filed the present action on March 10, 1961. The petition in form and substance is a conventional statement of a cause of action on account. The city states in its brief that its claim for medical service against Martin was a conditional obligation enforceable under the following quoted provisions of Chapter 28, Section 28.020, Revised Ordinances of Kansas City, Missouri, 1956:

“CITY HOSPITALS — WHEN FEES TO BE EXACTED; FEES, HOW SET. — All patients in hospitals and clinics owned and operated by the city, able to pay, as determined by the director of health, shall be required to pay for their care and treatment insofar as they are able to do so, * * *
“The director of health is hereby authorized to set a schedule of fees for bed, board and routine nursing care * * * and for all laboratory procedures, special treatment or drugs * * to those patients, who: * * *
“(c) Benefit from the settlement of personal injury claims relating to injuries treated at a municipal hospital * * * (Italics supplied.) (Or who, according to the city’s interpretation, “benefit from the collection of a judgment”.)

In his answer to plaintiff city’s petition defendant Martin interposed three defenses, in essence as follows: (1) Plaintiff waived its claim by failing to file a counterclaim in Martin’s negligence action as required by Section 509.420 V.A.M.S. and is consequently estopped by judgment to maintain this action. (2) Plaintiff is estopped to assert its claim because no demand or claim was presented defendant until after his suit for damages was reduced to judgment, with the result that defendant was unable to present the city’s charges as elements of special damages sustained by reason of the city’s negligence. (3) The claim is barred by the statute of limitations. Defenses numbered (1) and (2) are reasserted by defendant as appeal contentions. However the defense of statutory limitation seems to have been abandoned by defendant, inasmuch as his brief makes no reference to it.

On behalf of plaintiff it is generally contended that the judgment is erroneous for the reason that the city was entitled to a judgment as a matter of law. More specifically plaintiff directs its brief to the above noted defenses raised by Martin by contending, counterwise: (1) That this suit was not the subject of a compulsory counterclaim as is contemplated by Section 509.420 V.A.M.S., and (2) that plaintiff is not es-topped from asserting this claim for the reasons urged by defendant. Therefore, says the city, both of the stated defenses fail and as a consequence the judgment against it is without support or justification.

At the outset of this review, we cannot overlook this obvious fundamental question: What effect, if any, does the prior judgment have upon the validity of the city’s claim against Martin? The answer will derive from an application of the facts underlying both actions to that branch of the law defining the rights and liabilities both of a tort feasor and a person who has suffered a legal wrong and injury at his hands, considered together with the law treating of the finality and conclusive effect of judgments.

It was conclusively established by the final judgment rendered in case No. 113,933 that Martin received personal injuries as a result of negligence on the part of the city which required extensive hospital and medical treatment by the psychiatric facilities of the city’s General Hospital. Under this state of adjudicated facts the city became liable to Martin for all damages arising from his injuries which the law recognizes as compensable. This comports with the fundamental principle that a person who is injured by another’s breach of duty is entitled to recover just compensation as indemnity or reparation for his loss or injury.

It is elementary that when a wrongfully inflicted injury has rendered necessary the procuring of medical and hospital services and treatment, the injured person is entitled to reparation and may recover from the wrongdoer the reasonable value of such care, whether he has paid therefor or has only incurred obligation to do so. So it is in this controversy. Under its general liability to Martin for damages arising from his injuries and resulting conditions of disability, the city was specifically obligated either to pay him damages amounting to the reasonable value of hospital and medical service necessary to restore him, or to furnish such care in specific form through its own or other' available facilities.

Inasmuch as Martin chose to avail himself of direct reparation by requesting and receiving medical treatment from the city’s own hospital, for which no charge was made, the city was thus relieved of its obligation to pay money damages for that particular element of recovery. As stated in McCormick on Damages, Sec. 90, p. 325, “(T)his bars any claim for such item”. See Consolidated Arizona Smelting Co. v. Egich, 22 Ariz. 543, 199 P. [132] 136, where plaintiff received medical care at defendant’s hospital without charge, and defendant was thereby relieved of liability to pay money damages. In like manner the city removed from Martin’s lawsuit the element of liability to pay money damages representing this portion of the cost of his hospital and medical expense.

During trial of the former case, the city directly injected the issue of Martin’s medical and hospital treatment and its attendant cost, obviously for the purpose of eliminating that item from the consideration of the jury as an element of damages. Interrogation of plaintiff Martin by the city’s counsel, hereinabove quoted, permitted by the court over objection by Martin’s counsel, effectively told the court and jury that Martin had been furnished treatment and care at the city’s hospital without cost.

Under the presumption that the jury received and observed proper instructions it is necessarily our view that no portion of its verdict was intended as an award of damages for the cost of hospital and medical services and that the verdict was necessarily predicated on a finding that Martin’s legal entitlement to such an award had been satisfied by receiving actual specific care and treatment at the city’s hospital in lieu of money damages. No other result could have been properly reached under the evidence and applicable law. Thus the judgment entered on the verdict became a complete and final determination of the issue tendered.

“It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action between the same parties or their privies, regardless of the form the issue may take in the subsequent action, whether the subsequent action involves the same or a different form of proceeding, or whether the second action is upon the same or a different cause of action, subject matter, claim, or demand, as the earlier action. In such cases, it is also immaterial that the two actions are based on different grounds, or tried on different theories, or instituted for different purposes, and seek different relief”. 30A Am.Jur., Judgments, Section 371, p. 411, quoted by the Supreme Court, with approval, in Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, l. c. 123.

Observing the foregoing doctrine which is consistently followed by Missouri courts, we necessarily rule that the question tendered in issue by the city in this case was conclusively settled by the former judgment and cannot be relitigated. In the first case these identical parties contested the issue of whether Martin was entitled, as a matter of right, to indemnity for his medical expense. The judgment rendered amounted to a declaration of his legal entitlement to the specific services he received from the city. The present action presents the same issue but in a different form. It is designed to divest Martin of all indemnity for his medical expense by the effect of a subsequent judgment which would take from him the money value of the medical services he received and were adjudicated by the first judgment to be his lawful entitlement. This particular question of ultimate fact has been finally concluded and must remain at rest. Such reason alone is sufficient to support the trial court’s judgment.

However, we find additional reason —equally fundamental in nature — to agree with the trial court’s decision. It is apparent from the record that no valid cause of action ever accrued in the city’s favor on its presently asserted claim.

The city concedes that it had no case against Martin until his judgment became final, but theorizes that the affirmance of the judgment on appeal transformed the “conditional” claim against Martin (based on the above quoted ordinance) into a matured cause of action. The attempted rationale of this theory is that after the a.f-firmance and as a consequential effect thereof, Martin would “benefit from the settlement of personal injury claims relating to injuries treated at a municipal hospital” and thereby become liable to pay the city for his hospital services. This concept is founded on fallacy. The ordinance on which the city relies is not available as the basis of this claim because it does not take into account the factor of the city’s finally adjudicated liability for the “injuries treated”. A municipal ordinance cannot be held to contravene substantive law which placed the duty upon the city to either (1) pay Martin the reasonable value of the services in question or (2) provide those services without cost to him.

The city affirmatively contends that the hereinabove set out statements made by Martin’s counsel during trial of the former action constitute judicial admissions of liability binding on his client. In general, and in accordance with authority cited by the city, it is the accepted rule that “Distinct and formal admissions of fact made by counsel during the progress of a civil or a criminal trial are binding on the client when made for the express purpose of "dispensing with formal proof”. 7 Am.Jur.2d, Sec. 122, p. 121; Wehrli v. Wabash Railroad Co., Mo.Sup., 315 S.W.2d 765.

However, the authority of an attorney for such purpose is limited to statements or admissions of fact, and neither the client nor the court is bound by the attorney’s statements or admissions as to matters of law or legal conclusions. 7 C.J. S. Attorney and Client § 100, p. 922. It is also recognized that improvident or erroneous statements or admissions resulting from unguarded expressions or mistake should not be binding on the client. 7 C.J.S. Attorney and Client § 100, p. 922; Couch v. Landers, Mo.Sup., 316 S.W.2d 588. And, “Generally, an attorney has no implied or apparent authority to acknowledge the existence of an indebtedness on the part of his client.” 7 C.J.S. Attorney and Client § 102, p. 924, quoted with approval in Couch v. Landers, supra. In view of these clearly expressed limitations we cannot agree that the remarks of counsel referred to should be held to create a liability on the part of Martin and give rise to a cause of action by the city where none has ever existed as a matter of substantive right.

Finally, the city contends that Martin is estopped to deny that he is indebted to the city under the rule that a party will not be allowed to maintain inconsistent positions in successive legal proceedings. In arguing this point the city insists that “defendant cannot enjoy the benefits of his counsel’s remarks telling the jury that defendant was liable to pay the city for these hospital expenses should he recover a judgment, and defendant cannot enjoy the benefit of using these bills as evidence in the Supreme Court to support the amount of his award”. In support of this argument the city’s brief contains the following general statement of the rule upon which it relies, which we accept as essentially correct : “An estoppel may come into existence because of the conduct or action of a person in a court, and it is generally recognized that a party who has knowingly and deliberately assumed a particular position in judicial proceedings is estopped to assume a position inconsistent therewith to the prejudice of the adverse party. Accordingly, it has frequently been stated that where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a position to the contrary, especially if it is to the prejudice of the party who has acquiesced in the position formerly taken by him.” (Emphasis supplied.) 31 C.J.S. Es-toppel § 117, p. 610.

Essential requirements for application of this particular rule of estoppel are absent from this case. We first observe that Martin’s counsel did not succeed in maintaining the position he sought to establish in the former trial, to-wit, that Martin would have to pay the city if he got a judgment. Instead, the city prevailed upon the court to accept its own position, contrarily asserted, and to admit evidence reasonably calculated to induce the jury’s belief that the city would make no demand upon Martin. Again assuming that the jury was properly instructed and returned a verdict in accordance therewith and with due regard for the evidence, we are caused to believe the city suffered no prejudice from the remarks of counsel complained of. Nor do we attach significance to the incident which occurred during argument of the appeal. The Supreme Court was without authority to consider the city’s hospital bill as evidence on any appeal issue, and we must therefore assume that the exhibition of the document had no undue influence on the court and resulted in no prejudice to the city.

There is further reason to reject the “inconsistent position” doctrine of estoppel as a bar to Martin’s defense. Usually the rule is applicable only to bar the assumption of inconsistent positions as to factual matters and is not to be applied where a party assumes inconsistent positions as to contentions of law as applied to a given state of facts. Consequently, a change of position with respect to a pure matter of law ordinarily will not work an estoppel, particularly where the earlier position has been found unsound or untenable. 31 C.J.S. Estoppel § 117, p. 613; Christy v. Great Northern Life Ins. Co., 238 Mo.App. 525, 181 S.W.2d 663; Charter Oak Inv. Co. v. Felker, Mo.App., 60 S.W.2d 655. In the present instance, it is apparent that any change of position attributable to Martin’s counsel relates only to an ultimate legal conclusion to be drawn from undisputed facts, and that no change of position has been taken with respect to the facts themselves. We rule that no estoppel operates to bar Martin from his present defense.

The judgment is for the right party and should be affirmed.

It is so ordered.

All concur.

      . See Martin v. Kansas City, Mo.Sup., 340 S.W.2d 645.


author: CULLEN, Commissioner.

text:
    METHODIST HOSPITAL OF KENTUCKY, Appellant, v. Annetta RATLIFF, Appellee.
    Court of Appeals of Kentucky.
    June 11, 1965.
    Sanders, Redwine & Price, Pikeville, for appellant.
    Kelsey E. Friend, Friend & Mullins, Pike-ville, for appellee.
   CULLEN, Commissioner.

Annetta Ratliff, a licensed practical nurse, had an accident in her employment that caused a herniated invertebral disc. The Workmen’s Compensation Board awarded her compensation based on IS percent permanent partial disability. On her appeal to the circuit court judgment was entered setting aside the order of the board and remanding the case with directions to make an award for total permanent disability. The employer has appealed from that judgment.

Two doctors gave evidence, one by deposition and the other by a narrative report admitted by stipulation. Dr. Smith testified that Miss Ratliff had only a 20 percent functional disability of the body, but that she was totally disabled from performing the duties of a licensed practical nurse or any work that would require lifting, bending, stooping, pulling, pushing or other arduous labor. Dr. Scott reported simply that Miss Ratliff had a disability of “IS percent to the body as a whole,” without relating the disability in any way to her occupation.

The appellant concedes that Miss Ratliff is entitled to an award for total permanent disability under the rationale of Clark v. Gilley, Ky., 311 S.W.2d 391; E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102; Leep v. Kentucky State Police, Ky., 366 S.W.2d 729; and Deby Coal Co. v. Caldwell, Ky., 383 S.W.2d 905. (See also Sullivan v. Foster & Creighton Co., Ky., decided May 28, 1965.) However, the appellant urges the Court to reconsider its position and to overrule those cases.

We have reconsidered our position and we think it is correct.

The judgment is affirmed.