author: JACK P. PRITCHARD, Special Judge.

text:
    John DAVIS, (Plaintiff) Respondent, v. WEIL CLOTHING COMPANY, a Corporation, and Edmund Osteryoung, (Defendants) Appellants.
    No. 31180.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 14, 1963.
    Morton D. Baron, Baron & Freed, St. Louis, for appellants.
    Thomas P. Howe, Dennis J. Quillin, John J. Stewart, Clayton, for respondent.
   JACK P. PRITCHARD, Special Judge.

Defendants appeal from an adverse judgment upon verdict in this case of false arrest and imprisonment in the amount of $2,000 actual damages and $5,000 punitive damages, a total of $7,000. Defendants’ after-trial motions for judgment in accordance with motions for directed verdict or for new trial were overruled.

The incident of the arrest and imprisonment here complained of by plaintiff arose initially out of a bogus “no account” check (plaintiff’s Exhibit A) received by defendant, Weil Clothing Company, in its store on July 2, 1960, in the amount of $49.67, dated July 1, 1960, signed by a James Taylor, payable to a John Davis and endorsed “John Davis, 2305 Hood”. The check was drawn on the Manufacturers Bank and Trust Company of St. Louis, and in the body thereof bore the check protector imprint, “United Surplus Mart, Inc. 49 DOLS 67 CTS”. Defendant Osteryoung and defendant Weil, through other employees, did not know whether Weil Clothing Company paid cash for the check or whether it was for merchandise in whole or in part, or went on a charge account. Weil had no store record on the transaction.

Weil’s floor manager, defendant Edmund Osteryoung, one of whose duties it was to “okay” checks, did so on this check after the man presenting it apparently had endorsed it at a desk about four or five feet away from Osteryoung’s usual stand. Os-teryoung said he saw the man at the desk with a pen in his hand, but there was no way of telling whether he was writing or where he was writing. The man omitted the figures from the check, and upon request of the cashier Osteryoung inserted the figures “49/67”.

The man who presented the check was, according to Osteryoung, dressed in an orange polo shirt; he looked tired, had a little dirty spot on his cheek, was a nice looking man, with sharp, prominent nose, was about six feet tall, and approximately a hundred seventy-five pounds in weight. He had brown hair. Osteryoung, at the trial, identified the plaintiff as the man who gave him the check.

Osteryoung also stated that he got no identification from the man who presented the check to him because he was fairly busy and was planning to take his vacation next day, that “I neglected to do the things I should have done and get the information.”

Defendant Weil filed a counterclaim for the amount of said check, $49.67, against plaintiff, and the jury returned a verdict against the counterclaim, and there is no appeal from the judgment thereon.

The testimony of plaintiff reveals that on August 11, 1960, the day of the arrest and imprisonment, he was employed as a day bartender at Pub’s Lounge, 5513 Pershing, St. Louis, Missouri, and on that day he got to work between 8:30 and 9:00 a. m., remaining on duty until somewhere around 12:30 or 1:00 p. m. He then went downtown to the Excise Commissioner’s office at 204 Twelfth Street, across from the City Hall, in order to be fingerprinted as was required of all bartenders.

The lady in the Excise Commissioner’s office gave him a letter which informed him to go over to the Police Station at 12th and Clark, where he was fingerprinted on his right hand, thumb and forefinger only,.by an officer on the fourth floor, after which he went to the fifth floor for a records check. While there, the lady in Records got some cards and files and ran through them, saying, “Just a minute,” and excused herself and went to the back of the room. Pretty soon a gentleman came up and asked plaintiff to step to the rear of the building, which he did. Plaintiff was asked to sign his name a few times, which he did as usually, “John E. Davis”, and he was also asked to sign the name “James Taylor” three or four times. Plaintiff was asked if he had ever been arrested before, and he advised the officers that he had in 1956 or 1957 for an insufficient funds check. The gentleman then said, “Well, it looks like you have wrote other checks.” This the plaintiff denied, and a few minutes later a Corporal Mahfood came up and plaintiff voluntarily went downstairs with him.

Corporal Mahfood, who was on the Check Squad of the St. Louis Police Department, then asked plaintiff if he cashed a check at Weil’s Clothing Store, and plaintiff told him he had never been in Weil’s and he definitely didn’t cash a check there. Plaintiff requested that someone be called by telephone from Wiel’s or he would even go over there, and let them identify him as the man who was supposed to have cashed the check at the store, and Mahfood made the telephone call.

Then Osteryoung came over to the Check Squad after Mahfood called the store, and when asked by Mahfood, “Do you recognize this man,” he answered, “Yes, I do, he is the man that cashed this check at Weil’s store.” Corporal Mahfood then asked him, “Are you sure that’s the man?” Plaintiff told Osteryoung that he had never been in Weil’s, that plaintiff had never seen him before, and he (Osteryoung) had never seen plaintiff before, and that there must be some mistake. Osteryoung said further, “I am sure he is the man, and I don’t care what he says, he is the man that cashed the check in my store.” Plaintiff “ranted and raved” and offered to take a lie detector test then, and offered to prove to Osteryoung where he, the plaintiff, was on July 2nd. And again Corporal Mahfood asked Osteryoung, “Are you sure this is the man who cashed the check, because,” he said “if you are I am going .to have to arrest him.” Oster-young answered, “Well, I am positive that’s the man; regardless of what he says, I don’t care, that’s the man.” Mahfood then told plaintiff he was going to have to place him under arrest, and Osteryoung left, having been at the police station a good thirty minutes.

Plaintiff was then arrested by Mahfood, booked, all of his fingers on both hands were printed, he was photographed and thereafter placed in a cell. He was released when his employer Mrs. Blackwell, sent a bondsman down to the jail at 10:30 that evening, and plaintiff paid the bondsman $50 for his service in furnishing the bond.

Concerning the events immediately preceding the arrest, Corporal Mahfood testified that Osteryoung told him plaintiff was the man who gave him the bad check; he was positive of the man because of his wearing a yellow or gold-colored shirt, a knit sport shirt. Plaintiff then denied it, and said he was working at the Pub Lounge at 5513 Pershing from 9:00 a. m. to 6:00 p. m. on the day the check was given at Weil’s. Osteryoung on this occasion was informed by Mahfood that due to his identification he would have to place Davis under arrest, and also that Osteryoung would have to go with him (Mahfood) the next afternoon at a quarter to two, when “we would go to the Circuit Attorney’s office to apply for a warrant.” He made it clear to Oster-young that due to the fact he was identifying Davis, Mahfood would have to place Davis under arrest. Plaintiff was arrested .by Mahfood at 3:45 p. m.

Mahfood further testified that the next day he accompanied Osteryoung to the Circuit Attorney’s office, where they conferred with Assistant Circuit Attorney Robert Koster, who asked Osteryoung if the man in the holdover was the same man who had given him the check, to which Osteryoung answered, “I think it is the man.”

Plaintiff testified that later he employed a lawyer, Mr. Quillin, and agreed to pay him a fee of $300 to defend the matter of the bad check charge.

According to witness, Robert Koster, the warrant was refused by him as Assistant Circuit Attorney because Osteryoung expressed some doubt as to the identification of plaintiff as the man who presented the check at Weil’s.

Plaintiff’s employer, Elsie Blackwell, who operates the Pub Lounge at 5513 Pershing, testified that on the day the “no account” check was presented, July 2, 1960, plaintiff was employed by her as a day bartender, and she was in her place of business from after 12:00 to a little after 4:00 or 4:30 p. m., and plaintiff was also there all those times.

Mary Davis testified that in June and July, 1960, while she was employed by the Sixty-Six Warehouse Store, a division of United Surplus Mart, Inc., the store was burglarized and a book of counter checks and a check protector were stolen, these counter checks being of the same type as Plaintiff’s Exhibit A.

Sol Zalbstein testified that a check (Plaintiff’s Exhibit B) was passed at his employer’s store, Golde’s Department Store in Maplewood, of the same type as Plaintiff’s Exhibit A, by a man with a ruddy complexion and dark brown hair, and that the plaintiff was not the man who cashed the check in his store.

Handwriting expert witness, George G. Swett, testified that these two checks, Plaintiff’s Exhibits A and B, were written by one and the same person, and upon his comparison of plaintiff’s handwriting and signatures on cancelled checks of plaintiff with that on these two checks, it was his opinion that neither check was written by plaintiff.

With respect to how Osteryoung got over to the police station, the testimony of Oster-young himself discloses that on August 11, 1960, Mr. Pultman (Secretary and Office Manager to Weil) came in and told Oster-young that a Mr. John Davis was at the Check Squad and asked him if he would go down and try to identify him. Pultman told Osteryoung that the Police Department had called and asked him. Pultman told him to ask for Corporal Mahfood at the police station. Mahfood also testified that he called Weil Clothing Company and talked with Mr. Pultman and informed him that he had this Mr. Davis in his office; that there was a “wanted” card in the file by the name of John Davis, paying a check at Weil Clothing; and that he would like to have the check and all the parties concerned with the passing of the check in his office. He also informed Mr. Pultman that Mr. Davis was not under arrest, and would he hurry it up and send the people up as soon as possible, and Pultman told him he would. Osteryoung then came up to Corporal Mahfood’s headquarters.

Despite Osteryoung’s positive identification of plaintiff as the man who passed the check in Weil’s Clothing Store, there was sufficient evidence that the jury reasonably could find, as it did, that plaintiff was not the culprit. Thus it would appear that plaintiff was subjected to a wrong by this identification.

With all of its attendant facts, circumstances, and legitimate inferences deducible therefrom, is this identification sufficient to sustain the judgment herein? Plaintiff contends that the “positive, unqualified and persistent identification” of him by defendant, Osteryoung, justifies an action for false arrest. He claims that the cases cited by defendants do not support the conclusion that a positive, unqualified, and definite identification of an individual, as the perpetrator of a criminal offense, to the police authorities, with knowledge that this act of identification will imminently cause the arrest to be made, does not constitute the encouraging or countenancing of an arrest. Plaintiff says further: “Here there is a most positive and repeated identification, here the identifier is specifically and directly advised as to the consequences of his act, here he rejects the opportunity to qualify his identification. * * * Using defendant’s synonyms, he sanctioned, endorsed, and supported the arrest.”

The cases in Missouri uniformly hold that in a case of false arrest and imprisonment the plaintiff must prove that defendants “directed, countenanced or encouraged,” or “directed, countenanced, advised, encouraged or instigated the arrest. Heinold v. Muntz T.V., Inc., Mo.App., 262 S.W.2d 32, 35; Hoock v. S. S. Kresge Co., et al., Mo.Sup., 230 S.W.2d 758, 760 [affirming Hoock v. S. S. Kresge Co. et al., Mo.App., 222 S.W.2d 568]; Checkeye v. John Bettendorf Market, Inc., Mo.App., 257 S.W.2d 202, 203; Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239, 241; Vimont v. S. S. Kresge Co., Mo.App., 291 S.W. 159, 160;. State ex rel. Fireman’s Fund Insurance Co. v. Trimble, 219 Mo. 615, 242 S.W. 934, 935.

It is necessary again to define the referenced words in the above cases as such; words may bear upon the facts of this case at bar. In Hoock v. S. S. Kresge Co., et al., Mo.App., 222 S.W.2d 568, 571, citing from Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239, 242, the court stated :

“We have said that ‘instigate’ means ‘to stimulate or goad to an action, especially a bad action’; and that ‘one of its synonyms is “abet,” which “means, in law, to aid, promote, or encourage the commission of an offense.” ’ State v. Fraker, 148 Mo. 143, loc. cit. 165, 49 S.W. 1017, 1022; this definition has been followed in a malicious prosecution case, Hughes v. Van Bruggen, 44 N.M., 534, 105 P.2d 494. The applicable definition of ‘countenance’ is given by Webster’s New International Dictionary, 2d Ed., as ‘to encourage, favor, approve’ and its synonyms are given as ‘sanction, endorse, support.’ See discussion of this term in Vimont v. S. S. Kresge Co., supra [Mo.App., 291, S.W. 159]. Thus it requires something more than only furnishing wrong information, as the above authorities demonstrate, to amount to instigating, countenancing, advising or directing an arrest.”

In Cooper v. Johnson, 81 Mo. 483, 489, a false arrest case, the court said, “That one was present and witnessed the trespass, but neither by word, sign nor act, nor in any other manner, signified his approval of it does not render him liable. He is not by his mere silence to be held as countenancing the act and jurors are supposed to know the meaning of ordinary English words, and not one of a hundred men of ordinary intelligence but knows that to "‘countenance’ an act means something more than to witness it. Webster defines the word: ‘To encourage by a favoring aspect; to sanction; to favor; to approve; to aid; to support; to abet’. Mere approval of a trespass, after it is committed by one for whose benefit it was not committed, will not make him liable.”

In Richardson v. Empire Trust Company, 230 Mo.App. 580, 94 S.W.2d 966, 971, the court stated: “One who merely gives information regarding an offense justifying arrest does not incur liability even though, in giving such information, he acts maliciously or acts without probable cause, unless he goes beyond such point and instigates the arrest by suggestion and encouragement and countenances it. * * * A cause of action for false imprisonment cannot be based upon a mere negation or failure to speak or act, but can only be based upon some affirmative act instigating thereto.”

Plaintiff says that the case of Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239, inferentially adopts the conclusion that the identification here is sufficient. We do not draw that conclusion from the Snider case. There, it is true, defendant said only that he thought plaintiff was the prowler, and by that statement he did not positively identify plaintiff as the prowler. But the evidence there was further that defendant did not “ever suggest, advise, direct or order” the arrest of plaintiff. The court held that these facts and the circumstances in connection with plaintiff’s arrest were insufficient to show that defendant was responsible for it.

We think that the often cited case of Larke v. Bande, 4 Mo.App. 186, is close to the facts in the case at bar. There the defendant made a positive identification of plaintiff to the policeman by saying to him, “This man is trying to pass a ten-dollar counterfeit bill on me.” There was no express request or direction to the officer to make the arrest. The court held that as a matter of law, plaintiff was not entitled to recover.

The well-established rule in Missouri is that the mere giving of wrong information to the police concerning a criminal offense, even though it results in an arrest, cannot be the basis for an action of false arrest and imprisonment. Hoock cases, supra; Snider v. Wimberly, supra; Heinold v. Muntz T.V., Inc., supra; Vimont v. S. S. Kresge Co., supra; State ex rel Fireman’s Fund Insurance Company v. Trimble, et al., supra; Checkeye v. John Bettendorf Market, Inc., supra; Gould v. Skelly Oil Co., Mo.App., 50 S.W.2d 193; Larke v. Bande, 4 Mo.App. 186 (all cited by defendants). See also 35 C.J.S. False Imprisonment § 36, page 683, 21 A.L.R.2d 694, 710. The reason for this rule is well stated in Vimont v. S. S. Kresge Co., Mo.App., 291 S.W. 159, 160:

“ * * * The rule is imminently founded on reason. To hold to the contrary would entirely destroy the right of the humble citizen, to whom the patrolman on the beat or the town marshal or village constable represents the majesty of the law and to whom for many reasons the advice of counsel may be unavailable, to tell his troubles and difficulties to such officer, and to trust to the power and discretion of the legally constituted authorities to secure for him the rights which the law guarantees him.”

We think that defendants’ view is correct that the evidence here, on identification of plaintiff as the man who passed the bogus check, amounts only to the giving of information to the police officer. Defendant Osteryoung went to the police station at the request, of the police officer, Mahfood. Osteryoung never did request Mahfood to make the arrest. (Larke v. Bande, supra), and there was no evidence that he urged or advised the arrest, or that he took part in the questioning or holding of plaintiff, or that Mahfood was under his direction or was his agent. And after the arrest was actually made there was no affirmative act on Osteryoung’s part to signify his approval. He went to the Circuit Attorney’s office the next day to ask for a warrant with Corporal Mahfood and at his request. This court deems it of no vital importance that Osteryoung had it made clear to him the consequence of his act in identifying plaintiff, that Mahfood would have to arrest plaintiff, for the reasons that Osteryoung had a right to present this evidence to the police authorities, and Mahfood, in the performance of his duty as a police officer, had the right to require positive identification of plaintiff as the man who passed the check prior to the actual arrest. The evidence here is only that Mahfood made the arrest on his own initiative and judgment, after receiving the information from Oster-young. Furthermore, knowledge that an arrest was imminent could properly be inferred in any case where any person merely makes an identification of an alleged offender.

We hold as a matter of law, therefore, that defendants did not “direct, countenance, encourage or instigate” plaintiff’s arrest, and that the defendants’ motion for directed verdict made at the close of all the evidence should have been sustained. It is unnecessary, then, to review other issues presented as to admissibility of evidence, agency, damages, and the propriety of instructions given.

The judgment is reversed.

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

RUDDY, P. J., not participating.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    James T. LaPLANTE, Plaintiff-Respondent, v. The INDUSTRIAL COMMISSION of Missouri, June R. Rose, George W. Wise, Charles E. Cates, and the Division of Employment Security of the State of Missouri, Defendants-Appellants.
    No. 31352.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.

      Lloyd G. Poole, Gordon P. Weir, Jefferson City, for appellants.
    Roberts & Roberts, Charles G. Hyler, Farmington, for respondent.
   DOERNER, Commissioner.

This appeal is by the Industrial Commission of Missouri, Division of Employment Security, from a judgment of the Circuit Court of St. Francois County reversing the Commission’s denial of unemployment benefits.

The claimant, James T. LaPlante, filed his initial claim for benefits on July 16, 1961, and stated therein that he had quit his employment with the Twin City Packing Company on July 13, 1961. By a determination made on August 4, 1961, the Division’s deputy disqualified the claimant for benefits on the ground that the claimant had left his work voluntarily without good cause attributable to his work or to his employer.

Claimant appealed to the appeals tribunal, where a hearing was held before an appeals referee. At the hearing claimant testified that he worked for the Twin City Packing Company for about 16 months prior to July 13, 1961, the day he quit. He worked a 5½ day, 44 hour week. The greater part of the time he worked as a laborer in the Company’s slaughter house, but about 2½ hours a day he worked as a truck driver. In connection with the latter work he loaded his truck with quarters of beef at the Company’s slaughter house and drove it about 5 blocks to his employer’s locker plant, where he unloaded it. On July 31, 1960, he injured his back at work (“slipped a disc” as he expressed it) and thereafter he was continuously under the care of first one, and then another, chiropractor and was forced to wear a brace for his back. He lost time from his work because of his injury. The quarters of beef weighed as much as 200 pounds each. He weighed only 145 pounds, and the work was too heavy for him and affected his back. Most of the time he had no help in loading or unloading the truck, and there was no equipment to help him in such work. Right after his back was hurt he complained to Earl Bayer, manager of the slaughter house and his immediate superior, that the work was too hard and asked to be put on a patty machine or anything else; but Bayer said, “that is your job, you are assigned to it.” He repeatedly asked Bayer for other work but none was ever offered to him. Claimant produced statements from the chiropractors. That from Dr. M. L. Williams, dated August 2, 1961, stated that claimant was under the doctor’s care for “a lower back condition” from August 1 through August 31, 1960. That from Dr. J. H. Kister, dated July 1, 1961, stated that claimant had been under his care “for a severe strain of the low back muscles and has been advised by me to refrain indefinitely from extreme heavy lifting. Due to the nature of injury, recovery cannot be accomplained (sic) if this type of work is continued.”

During his interrogation by the referee (only the referee questioned the witnesses) the claimant stated that he and his cousin, Denver LaPlante, who also worked for the company, rode together to and from work each day. That he talked things over with his cousin, and both decided to quit. They quit at noon, and did not give any notice that they were going to leave. They quit at the same time because, “ * * * they was riding him all the time and they were riding me at the same time * * When asked to explain what he meant by “riding” he answered, “I can’t explain it. Just little odds and ends, just criticism of you.” As an example, “For instance if you forgot something he (Bayer) would check (chew?) you out and you would have to go-back and get it or get it the next time and just stuff like that.” Another example, “In a situation if you were slacking down on the work, it seemed like he wasn’t slacking' down, well, he would tell you about that.” Earlier he had said that he quit because, “Well, for one thing I got tired taking the bull and another thing it was injuring my health.” Another thing he disliked was, that “* * * the slaughter house that morning was blazing hot and after you get. through emptying it then you got to go back in the coolers and cut up pork * * He said that there was no particular incident which caused him to quit on July 13, and that “It was building up, that was all this dissatisfaction, and I talked it over with my cousin and we both decided to quit right then.”

Ronnie White, produced as a witness on behalf of claimant, stated that he had worked at Twin City’s slaughter house as a-lugger, filling orders, until July 1, 1961. He estimated that the average forequarter-weighed from 75 to 100 pounds, and the average hindquarter 100 to 125 pounds. According to White there was a hoist that lowered the hindquarter onto the back of the truck driver. He was permitted to-volunteer that the beef was too heavy for a 145 pound man, and that if he had been made a truck driver he would have quit. Claimant added that the hoist couldn’t be used because the rope was too short.

Earl Bayer, manager of the slaughter house, and Walter W. Walton, president of the company, both testified that it was very unusual for a quarter of beef to weigh 200 pounds. Bayer stated that if one did it was cut down to approximately 100 pounds and that claimant was never required to carry one weighing 200 pounds. Walton said' that there was a hoist available for handling the beef, so that it was not necessary for a truck driver to lift it. Bayer testified that claimant made no complaint to him on the day claimant quit, that claimant had never made any complaint, and that he could not remember that claimant ever asked for a transfer to other work. He related that on two occasions when he knew claimant had been to the doctor he offered to put claimant on lighter work but the claimant insisted that he wanted to load the beef. Bayer denied that he had ridden claimant, and stated that cleanliness was an important factor in handling beef, and that at times be suggested to claimant that he wash his truck, but did so in an amiable manner. He also stated that claimant was a little more forgetful than others, and that the locker people would have to tell claimant three or four times before he would remember to get the parcel on his truck. Walton testified that he had offered claimant a lighter job driving a delivery truck, with mixed loads of orders weighing 50 to 75 pounds apiece, but that claimant turned it down, even though the pay was higher. He also said that the claimant had been off from work only one day for sickness from January to April, 1961, and seven and a half days without giving any reason.

The appeals referee found that the work was not as heavy as the claimant contended; that he had been offered lighter work but refused to accept it; that the claimant left his work because he was dissatisfied with his working conditions; and that the claimant left his work voluntarily without good cause attributable to his work or to his employer. Claimant then filed an application to have the decision of the appeals tribunal reviewed by the Industrial Commission. The Commission denied his application, thereby adopting as its own the findings and decision of the appeals tribunal. Section 288.200 RSMo 1959, V.A. M.S. Thereupon claimant initiated this action in the Circuit Court to secure a judicial review of the Commission’s decision. The court found that the finding of the Commission that claimant left his work voluntarily without good cause attributable to his work or to his employer “ * * * is not supported by competent and substantial evidence upon the whole record and is clearly contrary to the overwhelming weight of the evidence”; that “the findings and decision of the Industrial Commission are erroneous as a matter of law”; and the court reversed and remanded the cause for further proceedings not inconsistent with its declaration. This appeal by the Commission followed. We have not been favored with a brief from the claimant.

Where a question of law is not presented, the scope of any judicial review in a matter of this nature is limited to that of determining whether, upon the whole record, the Industrial Commission could reasonably have made its findings and reached its result. Producers Produce Co. v. Industrial Commission of Mo., 365 Mo. 996, 291 S.W.2d 166; Kilgore v. Industrial Commission, Mo.App., 337 S.W.2d 91; Meyer v. Industrial Commission of Mo., 240 Mo.App. 1022, 223 S.W.2d 835. Neither a circuit court, nor this court, may substitute its judgment on the evidence for that of the administrative tribunal, nor may either set aside the Commission’s findings and order unless it is clearly contrary to the overwhelming weight of the evidence. Section 288.210; Producers Produce Co. v. Industrial Commission of Mo., supra; Ritch v. Industrial Commission, Mo.App., 271 S.W.2d 791; Hart v. Industrial Commission of Mo., Mo.App., 234 S.W.2d 803. And in making its review a court must consider the evidence in the light most favorable to the finding, together with all reasonable inferences that may be drawn therefrom. Producers Produce Co. v. Industrial Commission, supra.

Section 288.050, so far as here material, provides:

“1. Notwithstanding the other provisions of this law a claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if the deputy finds
(1) That he has left his work voluntarily without good cause attributable to his work or to his employer; *

Both in his initial claim, and in his testimony, the claimant conceded that he quit his job. However, the mere fact that an employee leaves his employment does not necessarily mean that the act is voluntary. Kilgore v. Industrial Commission, supra. If reasons of health or similar factors having a causal connection between his disability and his work compel him to leave, then the termination cannot be said to be voluntary and it is good cause attributable to his work, within the meaning of the statute. Kilgore v. Industrial Commission, supra; Bussmann Mfg. Co. v. Industrial Commission of Mo., Mo.App., 327 S.W.2d 487; Bussmann Mfg. Co. v. Industrial Commission, Div. of Employment Sec., Mo.App., 335 S.W.2d 456. This, in effect, was claimant’s contention. Of course, the burden of proof rested upon the claimant to establish his right to benefits. Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77; Wolpers v. Unemployment Compensation Commission, 353 Mo. 1067, 186 S.W.2d 440; Producers Produce Co. v. Industrial Commission of Mo., supra.

It is apparent from the review oi the testimony that there was a sharp conflict in the evidence as to the weight of the quarters of beef the claimant was required to load and unload; whether there was a hoist available for use in handling them; the state of claimant’s health and his ability to perform the work-; whether claimant had ever requested a transfer to lighter work; whether the employer had ever offered claimant lighter work, and if so, whether the claimant had refused it; and whether claimant in fact quit his job because the work was injurious to his health, or whether he left because he was dissatisfied over fancied criticism and his working conditions and “got tired of taking the bull,” as he himself expressed it. It is likewise obvious that the Commission resolved these conflicts adversely to the claimant and reached its ultimate finding that the claimant left his work voluntarily without good cause attributable to his work or to his employer. That decision was supported by competent and substantial evidence, and is not contrary to the overwhelming weight of the evidence. Hart v. Industrial Commission of Mo., supra; Kilgore v. Industrial Commission, supra.

The judgment of the circuit court is therefore erroneous and should be reversed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, judgment is reversed.

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


author: ANDERSON, Presiding Judge.

text:
    John D. LAMPMAN, (Plaintiff) Respondent, v. Bertha M. LAMPMAN, (Defendant) Appellant.
    No. 31210.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.

      Robert A. Mcllrath, Flat River, for appellant.
    Charles A. Weber, Ste. Genevieve, for respondent.
   ANDERSON, Presiding Judge.

This is a divorce suit brought by John D. Lampman, as plaintiff, against Bertha M. Lampman, as defendant. To plaintiff’s petition defendant filed a cross-bill. When the case came on for hearing, plaintiff dismissed his petition and the cause proceeded to trial on defendant’s cross-bill. The trial resulted in a finding for defendant and a decree of divorce in defendant’s favor was entered on said finding. However, the court failed to make any provision in said decree for alimony for defendant or any allowance to her for an attorney’s fee as prayed for in said cross-bill. From this judgment defendant has appealed and complains of the court’s refusal to grant the above mentioned relief.

The parties were married May 28, 1927, and separated in November, 1950. Both were 56 years old at the time of the trial below, January 9, 1962. There were no children born of the marriage. There was ample evidence offered by defendant to support the charges made by her as grounds for divorce. This evidence need not be detailed here. It is sufficient to say that we have examined all the evidence and agree with the finding of the trial court that defendant is the injured and innocent party, and that the acts and conduct of the plaintiff as shown in evidence entitle defendant to a divorce. We will relate only that part of the evidence which bears upon the matter before us, i.e., whether the court erred in failing to grant defendant alimony, as prayed in her cross-bill and in refusing to allow her a reasonable attorney’s fee.

The evidence shows that defendant is not able to work. She has high blood pressure, heart trouble and what she described at the trial as “bone trouble.” She takes medicine constantly, and has been on welfare relief since her separation from plaintiff. Plaintiff has contributed nothing for her support since the separation. She lives in what she testified to as a six room house located on 52.40 acres of land owned by her and plaintiff as tenants by the entirety. However, it appears that two of these rooms are not finished. The land was purchased from different persons. The deed for 42.80 acres, which were purchased in 1946, shows a consideration of $1,000.00 and the 3.20 acres cost $100.00 per acre in 1953. 6.40 acres of this land was conveyed, October 17, 1955, to the parties by plaintiff’s half-brother, but the record does not show how much, if anything, was paid for it. The house is on the 6.40 tract and the construction of it was begun by plaintiff’s half-brother and was being built, according to defendant’s testimony, as a home for her. It was not finished when it was conveyed to plaintiff and defendant. Plaintiff testified he had no opinion as to the value of the property. Defendant testified that the property was worth $12,000.00 and that land around there sold for $200.00 an acre. She stated she had an appraisal made of the property by ’Dolph Okenfuss and that he said the property was worth $200.00 an acre. However, just two months before the trial the parties sold approximately one acre to the Highway Commission for $100.00. There is a deed of trust on the property for $5,100.00.

Plaintiff was steadily employed by the U. S. Corps of Engineers from 1951 to August 25, 1961. On the latter date he was in an accident. As a result of the accident he suffered a compound fracture of the knee and a fractured ankle. He was in the hospital on account of those injuries for one week. Later and in October, 1961, he went back to the hospital due to a heart condition. After that he returned to his employment and worked three days, but in November, 1961, again entered the hospital with a kidney ailment. At the trial plaintiff testified that his doctor told him the day before that he was able to go back to work. Plaintiff’s position was a “rodman” with a surveying gang. He was in civil service and rated as a “surveying aid.” His earnings for the last two years amounted to $4,-975.00.

In determining matters of this kind we hear the case de novo, and it is our duty to examine the whole record and reach our own conclusion on the facts. Simmons v. Simmons, Mo.App., 280 S.W.2d 877. In the discharge of this duty, however, the determination of the trial court is entitled to great respect, and we will not ordinarily disturb the trial court’s ruling, except where there is a manifest abuse of discretion. McCormack v. McCormack, Mo.App., 238 S.W.2d 858; Steinert v. Steinert, 215 Mo.App. 337, 250 S.W. 924; Stokes v. Stokes, Mo.App., 222 S.W.2d 108.

The only justification for refusing alimony in the case at bar was plaintiff’s inability, at the time, to pay due to the fact that he was unable to work on account of an accident and his health. Unless and until he is engaged in gainful occupation an award of alimony in a substantial amount cannot be justified. But to deny alimony altogether would forever foreclose the court from making any allowance thereafter, even though the plaintiff’s financial condition should improve to such an extent that he could and should contribute toward defendant’s support. Smith v. Smith, 350 Mo. 104, 164 S.W.2d 921. The trial court should have made an award of alimony, at least in a nominal amount, to prevent such a situation from arising, and its failure so to do, in our opinion, was an abuse of judicial discretion. We also feel that it was an abuse of discretion for the trial court to refuse to make an allowance of an attorney’s fee to defendant.

For the foregoing reasons the cause is remanded with directions to the trial court to amend its decree by allowing monthly alimony in the sum of $1.00, and an attorney’s fee in the sum of $150.00.

SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.


author: WOLFE, Judge.

text:
    MUTUAL FINANCE COMPANY, a Corporation, (Plaintiff) Respondent, v. GOODMAN FINANCE COMPANY, a Corporation, (Defendant) Appellant.
    No. 31304.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 14, 1963.
    Roberts & Roberts, Raymond R. Roberts, Farmington, for appellant.
    Melvin E. Carnahan, Rolla, for respondent.
   WOLFE, Judge.

This is an action to replevin an automobile brought by the holder of a mortgage on an automobile. The defendant in possession claimed title by reason of an assignment of a foreign car registration, a bill of sale, a mortgage, and a Missouri certificate of title. There was a judgment for the plaintiff, and the defendant has appealed.

The case was presented upon what is denominated as a “Stipulation of Facts” and the testimony of one witness called by the defendant. The facts as stipulated are as follows:
“1. That both Plaintiff and Defendant are Corporations organized and existing under the laws of the State of Missouri and capable of suing and being sued under the laws of the State of Missouri.
“2. That defendant is now in possession of a certain 1960 Ford convertible automobile, Serial No. OU-55XIS5671 and that it has held possession of said automobile since on or about July 12, 1961.
“3. That on or about July 26, 1960, Montgomery Ford Sales of Rolla, Missouri, sold said 1960 Ford Automobile to one Robert Chapman for Frontier Auto Sales. That the said Robert Chapman was at all times herein mentioned engaged in the business of selling new and used automobiles doing business as Frontier Auto Sales with Gordon Perry and certain others, Waynesville, Missouri, and as a part of said transaction the said Montgomery Ford Sales delivered an application for title to said Frontier Motor, Waynesville, Missouri, a copy of which is attached hereto and marked Exhibit ‘A’ and subsequently delivered to the said Robert Chapman Missouri Title No. 021473 standing in the name of Montgomery Ford, a copy of which is attached hereto and marked Exhibit ‘B’.
“4. As a part of said transaction the said Robert Chapman executed and delivered to Montgomery Ford Sales a note and chattel mortgage which are attached hereto and made a part hereof and are marked Exhibits ‘C’ and ‘D\ Defendant admits said Chapman’s power and authority to Bind Frontier Auto Sales.
“5. That no Missouri Sales Tax was ever paid on such transaction.
“6. Said Montgomery Ford Sales did thereafter on the 26th day of July endorse, assign and deliver to Plaintiff said note and chattel mortgage for valuable consideration and the same were filed and recorded in the Office of Recorder of Deeds of Phelps County, Missouri, on August 8th, 1960.
“7. That as of the 10th day of January, 1962, Plaintiff had never held a certificate of title to said motor vehicle.
“8. That the said Robert Chapman is now in default on said note and chattel mortgage and that there is a balance due and owing thereon of $2,-232.00.
“9. That on or about the 12th day of November, 1960, Frontier Auto Sales at Waynesville, Missouri, sold said Ford automobile to one’ Adolph Berthold, a member of the Armed Services then stationed at Fort Leonard Wood, Missouri, and a resident of the State of Oklahoma and delivered to the said Adolph Berthold a bill of sale to said motor vehicle, and Exhibit ‘A’.
“10. That said Adolph Berthold executed and delivered to Frontier Auto Sales a note and chattel mortgage which are attached hereto and marked Exhibits ‘E’ and ‘F.
“11. That thereafter the said Frontier Auto Sales did endorse, assign and deliver said note and chattel mortgage to Defendant for valuable consideration and the same were filed and recorded in the Office of the Recorder of Deeds of Pulaski County, Missouri, at 11:35 A.M. on December 16, 1960.
“12. That on the Sth day of December, 1960, Adolph Berthold was issued Alabama title to said vehicle Tag No. CS1490 (1960) 23-11, 250 (1961), a copy of which is attached hereto and marked Exhibit ‘G’.
“13. That thereafter Adolph Bert-hold defaulted on said chattel mortgage. Defendant now holds a bill of sale assigning said vehicle to Defendant and purporting to have been executed and delivered by Adolph Berthold. Said Bill of Sale is attached hereto and marked Exhibit ‘H’.
“14. That thereafter, the State of Missouri issued to Defendant title No. 771 732 to said vehicle which Defendant still holds and which is attached hereto and marked Exhibit T’.
“FILED: April 6, 1962.”

The defendant called one witness, V. Lee Gammon. Mr. Gammon was the General Manager of the defendant Finance Company. He testified about the mortgage that his company took from Berthold. He said that Berthold defaulted, and that the Ford convertible here in question was placed in storage by agreement with Berthold. The car, together with the title and the bill of sale mentioned in the Statement of Facts, was left with the Frontier Auto Sales. It was agreed that Berthold could redeem the car upon return from a tour of duty away from Fort Leonard Wood, where he was then stationed. The defendant’s manager further testified that the car was not redeemed, and that he got the car and the papers mentioned from Frontier Auto Sales.

It is rather difficult to analyze the complex transactions set forth in the Statement of Facts as they relate to the defendant’s transactions, because the exhibits attached are in some respects in contradiction of the facts as stated.

In the first place, Berthold, the one to whom Frontier Auto Sales is said to have sold the automobile in question, did not receive a bill of sale. The exhibit attached as a bill of sale to Berthold is the original bill of sale received by Frontier Auto Sales when the car was first purchased. Another variance between the exhibits and the facts agreed upon is that the mortgage signed by Berthold at the time of the alleged purchase and which the defendant holds by assignment, is not a mortgage on the car here in question but on a car of different type and serial number.

Our first concern, however, is with the question of the plaintiff’s right to possession, for if the plaintiff has no right, then the weakness of the defendant’s right to possess is of no importance. It is the established rule that in replevin, the plaintiff must recover upon the strength of its own claim to the property, and not upon a weakness of the defendant’s claim. Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975; Foulke v. McIntosh, Mo.App., 214 S.W.2d 735; Bordman Investment Co. v. Peoples Bank of Kansas City, Mo.App., 320 S.W.2d 72; Pearson v. Allied Finance Company, St. Louis Court of Appeals, 366 S.W.2d 6.

The mortgage, under which the prevailing plaintiff claimed title by reason of a default in payment, was signed by Robert Chapman. This mortgage secured a note given in purchase of the car, and also signed by Chapman. At the time of its execution, apparently, the seller gave a bill of sale and later an assigned Missouri title to Frontier Auto Sales. The plaintiff seeks to assert that Chapman was doing business as the Frontier Auto Sales. He predicates this upon a statement by witness Gammon. Gammon was asked if the Frontier Auto Sales was a partnership or an individual doing business. He answered, “As far as I know, individual doing business.” He was then asked who the individual was, and he stated that it was Robert D. Chapman. The assertion of this witness was not stated as a fact, but only as a statement of his knowledge of the situation.

We cannot accept this as a fact in view of the stipulation that Frontier Auto Sales was the name under which Chapman and Gordon Perry and others did business. The respondent, the prevailing plaintiff below, also relies upon a stipulated fact that Chapman had the power and authority to bind Frontier Auto Sales. This would certainly be of value to the plaintiff if Chapman had sought to bind the Frontier Auto Sales, but he did not. The note and mortgage on which plaintiff’s claim is predicated are signed by Chapman as an individual. This mortgage, upon which the plaintiff relied, shows upon its face that it was never executed by or on behalf of anyone who ever held title to the car. The plaintiff’s claim to possession must fail, even though the defendant’s claim is quite nebulous. It fails for the reason that the right under which it claims does not exist.

The judgment is reversed.

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


text:
    Robert REUTNER and Lucille Reutner, His Wife, and Claud E. Kahmann, Plaintiffs-Respondents, v. Arnold VOUGA, David Davit, and Jean L. Vouga and Madeline Vouga, His Wife, Defendants-Appellants.
    No. 31235.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.
    Motion for Rehearing and for Transfer to Supreme Court Denied May 14, 1963.

      Grand, Peper, Martin & Roudebush, Malcolm W. Martin, Lewis R. Mills, William A. Richter, St. Louis, for defendants-appellants.
    Gerwitz & Seegers, Gerald L. Seegers, St. Louis, for plaintiffs-respondents.
   DOERNER, Commissioner.

This action in equity stems from the construction by defendants of storm sewers to serve their subdivision, situated in the City of Frontenac in St. Louis County The trial court granted plaintiffs certain equitable relief, as well as monetary damages, and defendants appeal.

The following sketch of the area will facilitate a better understanding of the facts and the issues presented on appeal:

At all material times the defendants, except Arnold Vouga, owned the land denominated on the sketch as Vouga Estates. Their property extended from Conway Road on the south to the Missouri Pacific Railroad right-of-way on the north, and lay west of the unbroken line between those two points shown on the sketch, which will be referred to as the dividing line or the property line. About 1948 plaintiffs Robert and Lucille Reutner, husband and wife, purchased the parcel marked “Reutner tract,” which adjoined and was east of the dividing line between the Vouga Estates and the other properties. Prior thereto, at their instigation, the then owners of the real estate lying on either side of the dividing line, by a written instrument filed of record, created for road purposes for their mutual use and benefit, and that of their heirs and assigns, the roadway easement indicated on the sketch by the dotted lines. This roadway easement was 20 feet wide, 10 feet thereof being on either side of the dividing line, and extended northwardly about 1150 feet from the center line of Conway Road.

At the time the Reutners acquired their property they installed a 10 foot rock driveway on the roadway easement, 5 feet thereof being on either side of the dividing line. This rock driveway ran from Conway Road northwardly for about 300 feet, to a turnaround between their house and their garage.

About 1954 plaintiff Kahmann purchased the 17.9 acre tract marked “original Kah-mann tract” on the sketch. As shown, the southern part of Kahmann’s original land was adjacent to and east of Vouga Estates, but the northern portion, as indicated on the sketch, was separated from it by a 5½ acre tract. The northern 4½ acres of this tract was owned by Edouard Vouga and Katherine Alt Vouga, his wife, and the remaining acre by Josephine M. Alt. On November 29, 1957, plaintiff Kahmann entered into separate contracts with Mr. and Mrs. Edouard Vouga and Josephine M. Alt for the purchase of these 5½ acres, and after one extension of the closing date he acquired the legal title to the properties on January 7, 1958. In the interim, on December 7, 1957, Mr. and Mrs. Vouga granted an easement to the Metropolitan St. Louis Sewer District (hereafter called the Sewer District) across their 4½ acre parcel which gave the Sewer District “the exclusive right to build and maintain a sewer or sewers on the strip or strips of ground” as shown on the foregoing sketch. This easement was 10 feet wide and 170 feet long. Plaintiff Kahmann had actual knowledge of the grant at the time it was made, and, in fact, procured Mrs. Vouga’s signature to the written instrument at the request of defendant Arnold Vouga. The latter, while not an owner of the property called Vouga Estates, was the son of defendants Jean L. and Madeline Vouga, and (as stipulated by the parties) acted as the agent for all of the defendants in the development of the subdivision and as such committed the acts which gave rise to this litigation.

The plans for the storm sewer system for Vouga Estates were prepared for the defendants by an engineering firm employed by them. Broadly speaking, the system as planned and constructed consisted of two parts, each independent of the other, one of which drains the surface water from the northern portion of the subdivision and the other from the southern part. In both parts, generally speaking, the flow of the water is from the west to the east. In accordance with the plans, defendants’ sewer contractor laid the concrete pipe for the northern portion of the system up to the property line dividing Vouga Estates from Kahmann’s 5½ acre tract, and at the western edge of the easement granted to Metropolitan St. Louis Sewer District. At that point the end of the 33 or 36 inch pipe was several feet below the surface of the ground, and had nothing further been done the water could not, of course, have been readily discharged from the sewer. In order to alleviate the situation, defendants’ sewer contractor, without the knowledge or consent of Kahmann, dug a ditch about 4 feet deep and 6 feet wide across the 170 foot strip comprising the easement granted to the Sewer District. The excavated material was piled to a height of 4 to 6 feet along the northern edge of the ditch, as were numerous trees felled during the digging. Kahmann testified that the obstructions prevented him from reaching the area north of the ditch with the tractor and rotary mower he customarily used to cut the grass. He also testified that defendants’ grading contractor while grading the northern portion of defendants’ subdivision ran heavy machinery over the northern part of the 5½ acre tract, thereby destroying the grass and creating deep ruts in the denuded ground.

North of the Reutners’ garage the ground sloped downward for about 100 feet to a swale, situated approximately at the point on the sketch indicated as manhole B. Sometime after they purchased their property the Reutners joined with Edouard and Jean Vouga in constructing a culvert, with concrete abutments at either end, underneath the 20 foot roadway easement at the low point of the swale. The plan for the storm sewer system for the southern part of Vouga Estates, as prepared by the engineers, provided for the sewer line to run to manhole A, from there to manhole B, and to then connect with the culvert underneath the roadway easement. As shown on the sketch, the manholes and the sewer line between them were located on the west or Vouga side of the roadway easement. During the work of construction the defendants’ sewer contractor made two large excavations in the roadway easement for the manholes, the southern one being partly on the Reutners’ rock driveway. A ditch was also dug in the easement between the manholes, along the edge of the rock driveway. As a result of the excavations and the mud which spread over the rock driveway, the Reutners’ ingress to and egress from their home was totally blocked or interfered with for a period of approximately 90 days. Four delivery trucks or other vehicles which sought to use the driveway became mired in the mud. Reut-ner had to leave his car parked near Conway Road and traverse the intervening distance on foot. The mud was also washed onto his rock turnaround, and into his garage. Defendants’ evidence was that they and their contractor attempted to rehabilitate the driveway after the construction of the manholes and sewer was completed. However, plaintiffs’ evidence was that additional rock and work would be required to restore the roadway to its original good condition. The undisputed evidence was that the connection had not been made between manhole B and the pre-existing culvert until about a month .before the trial, held in October, 1960, and that lacking an outlet the water gushed out of the top of manhole B and flowed across the roadway easement, rendering it impassable. The Reutners also introduced evidence that the excavation for manhole B had not been back-filled, which prevented them from driving on the roadway easement at that point, and that the cover of manhole A protruded above the surface of the roadway.

The transcript reveals that by and with the consent of both counsel, and accompanied by them, the court during the course of the trial visited and inspected the properties involved for the purpose, as stated by the court, “ * * * to better acquaint the Court with the exact location of the property and the conditions as they exist at the present time.”

After making certain findings of fact and conclusions of law the court decreed:

“WHEREFORE, the premises considered, the Court doth order, adjudge and decree:
“1. That the defendants restore the area surrounding manhole B and that the surface of the land and the top of the manhole cover constitute a passable and useable twenty foot easement within the boundaries as determined by the easement in evidence, and that they perform such necessary filling, grading and other work necessary to restore said easement for use to the full extent of its width and that in the performance of same take whatever measures are necessary to prevent the erroding of such excavated or filled land, or the washing of same onto the roadway easement.
“2. That the plaintiffs Reutner have judgment against the defendants and all of them in the amount of $600.00 for the restoration of the driveway, for $450.00 for the deprivation of the use of the easement for a temporary period, and for $1,000.00 for the diminution in the value of the realty for a total judgment in favor of the plaintiffs Reutner and against the defendants in the sum of $2,050.00.
“3. That the plaintiff Kahmann have judgment against the defendants and all of them for damages for trespass, for the utilization of his property and for the diminution in the value thereof, in the sum of $10,000.00.
“4. That the costs of the action be taxed against the defendants.”

Defendants interpret the judgment as denying equitable relief to Kah-mann. Based on that construction, they argue that the trial court erred in granting Kahmann legal relief, because a court of equity, having denied equitable remedies, cannot retain the case to try purely legal issues. Krummenacher v. Western Auto Supply Co., Mo.App., 206 S.W.2d 991, affirmed 358 Mo. 757, 217 S.W.2d 473; Miller v. St. Louis & Kansas City Ry. Co., 162 Mo. 424, 63 S.W. 85; Dyer v. Union Electric Co., Mo.App., 318 S.W.2d 401. We do not share defendants’ interpretation of the judgment. It is true that as one of its conclusions of law the court stated that Kahmann was not entitled to equitable relief. But by the judgment the court in fact granted him such relief. By the first paragraph of the judgment the court ordered the defendants to restore the roadway at manhole B to a passable and useable condition for its full width. Nothing therein restricts such relief solely in favor of the Reutners. Actually, repair of the roadway will benefit Kahmann more than the Reutners. This for the reason that the evidence showed that Kahmann’s use of this portion of the roadway was greater than that of the Reutners. Kahmann as well as the Reutners sued for equitable relief regarding the roadway. There can be no doubt that the written instrument creating the easement gave him the right to use the roadway. The trial court specifically found that Kahmann had in fact used it and had not (as defendants pleaded) abandoned his rights by failing to use the roadway. Under the pleadings and the evidence the trial court’s decision was obviously correct and should not be disturbed on appeal, irrespective of the correctness of any reasons or conclusions it may have stated. City of St. Louis v. Evans, Mo., 337 S.W.2d 948; Producers Produce Co. v. Industrial Commission of Missouri, 365 Mo. 996, 291 S.W.2d 166.

Defendants also contend that the trial court erred in holding that they committed a trespass by digging the ditch across Kahmann’s land without his permission. They readily concede that they dug the ditch but seek exoneration for their act on the grounds, first, that it was dug on the easement granted to the Metropolitan St. Louis Sewer District; and second, that it was done at the direction and under the supervision of a Sewer District inspector. No authorities are cited by defendants, and we are unaware of any, which would support the novel proposition that if A grants B an easement to build a sewer across his land, C is thereby authorized to do so — or to dig an impassable ditch. As to the second exculpatory grounds offered, the only evidence on that score was the testimony of the sewer contractor’s former foreman that an unnamed inspector of the Sewer District told him to dig the ditch. Of course, the trial court may have declined to believe this somewhat nebulous testimony. But even if it be accepted at face value it is without legal significance for a number of reasons. The easement was granted to the Sewer District, a political subdivision created by the voters of the City and County of St. Louis pursuant to Article VI, Section 30(a) of the Constitution of 1945, V.A.M.S. Petition of City of St. Louis, Mo., 363 S.W.2d 612; State on Inf. of Dalton v. Metropolitan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225. There is grave doubt whether the Sewer District, by even a written conveyance, could permit the construction of a private sewer on the easement granted it. Missouri-Kansas-Texas R. R. Co. v. Freer, Mo.App., 321 S.W.2d 731. Furthermore, the Sewer District did not do so. A sewer inspector is not the Sewer District, and there was no evidence that it was within the scope of his authority to grant defendants permission to use the easement. Lastly, the easement granted the Sewer District only the right to build a sewer, and if it could convey any right to use its easement it would be solely for that purpose. Defendants did not build a sewer on Kahmann's property, they dug a ditch. While the meaning of the word “sewer” may vary depending upon the context in which it is used, Terminal R. R. Ass’n of St. Louis v. City of Brentwood, Mo., 360 Mo. 777, 230 S.W.2d 768, in the modern concept of the word, and as employed in the conveyance to the Sewer District, the word connotes a subterranean conduit or channel to carry off water or refuse, not a ditch. Fuchs v. City of St. Louis, 167 Mo. 620, 67 S.W. 610. Defendants did not have the slightest legal right to enter upon Kall-mann’s land and the court very properly held that they had trespassed thereon.

Defendants attack that part of the judgment and decree in which the court awarded Kahmann $10,000 “ * * * for trespass, for the utilization of his property and for the diminution in the value thereof.” There appears to be no dispute between the parties over the proper measure of damages for a trespass. As stated in Welker v. Pankey, Mo.App., 225 S.W.2d 505, 508, the rule is that:

“ * * * In a case of trespass upon land damages are measured by the depreciation in the. value of the land where such value has depreciated by reason of the trespass; but, where the property can be restored and the cost of restoring is less than the depreciation caused, then the lower amount is the measure of damages. There should, of course, be added to the cost of restoring the land such actual damages as the owner may have suffered by the loss of use where that is shown by the evidence. Young v. Home Telephone Co., Mo.App., 201 S.W. 635; Sperry v. Hurd, 267 Mo. 628, 185 S.W. 170; Tegler et ux. v. Kansas City, 95 Mo.App. 162, 68 S.W. 953; Reed v. Peck et al., 163 Mo. 333, 63 S.W. 734; Smith v. Kansas City, 128 Mo. 23, 30 S.W. 314.”

What defendants contend is that there was insufficient evidence on either standard to support the amount awarded Kahmann. As to that of depreciation in value, their argument is based on a misconstruction of the testimony of O’Toole, the plaintiffs’ expert witness. In answering a question calling for his opinion on the value of Kahmann’s land “ * * * without that excavation and ditch in there,” O’Toole used the phrase “ * * * without the present storm water runoff or sewer easement * * Defendants argue that by the word “easement” O’Toole referred to the written easement granted to the Sewer District, and contend that they should not be held liable for that part of the depreciation in value attributable to that grant. A fair reading of O’Toole’s entire testimony, as well as the passage in question, clearly shows that he was referring to the depreciation in value resulting from the ditch dug by defendants. That figure, in his opinion, was $15,500.

However, defendants are on firmer ground on their claim that no evidence was introduced as to the cost of restoring Kahmann’s land. As they state in their brief:

“Plaintiff Kahmann’s land could be restored simply by filling in the ditch. There is no evidence in the record concerning what the cost of this restoration would be. Plaintiff Kahmann has therefore failed to prove an essential element of his case. He cannot ask the court to assume that the cost of restoration would exceed the decrease in market value; if (as seems probable) the cost of filling in the ditch would be less than the decrease in market value caused by the ditch, then Kahmann’s recovery should be no more than the cost of restoration. * * * ”

The rule quoted above contemplates the restoration of the land in the physical sense. Apparently Kahmann’s theory of restoration was that of restoring the value of the land. To that end he introduced evidence that the value of his property could be partially restored by constructing a sewer to connect with defendants’ outlet, and to run across his land to Deer Creek, at a cost of $9500. O’Toole also testified that even though the proposed sewer was constructed the value of Kahmann’s northern 4 acres would remain diminished and would be worth $6,000 less than their value prior to defendants’ trespass. Kahmann’s theory involved mitigation of damages, not the physical restoration of the property. If tenable at all, it would be only on the basis that it would result in an amount lower than both the depreciation in value and the cost of restoration. But the fact remains, as the defendants point out, that no evidence was introduced of the cost of filling in the ditch and otherwise restoring Kahmann’s land to its pre-existing condition. For aught that appears in the record such damages may be substantially less than the $15,500 claimed by Kahmann or the $10,000 allowed by the court.

Upon appeal, we try an equitable action de novo, and may render or direct the entry of such judgment as the trial court should have rendered. Anison v. Rice, Mo., 282 S.W.2d 497; Bobst v. Sons, Mo., 252 S.W.2d 303; Missouri Cafeteria v. McVey, 362 Mo. 583, 242 S.W.2d 549. In the absence of evidence as to the cost of restoring Kahmann’s land, and of any damages for his loss of use, it is obviously impossible for us to finally dispose of the case, and it must be remanded for the purpose of determining, in accordance with the foregoing rules, the proper amount of monetary damages to which Kahmann is entitled.

However, if (as defendants contend), the cost of restoration, together with such actual damages as Kahmann may have suffered by the loss of use of his property, is lower than the depreciation in value, then another factor must be considered. Restoration by filling in the ditch, grading, seeding, or sodding, and, if necessary, fertilizing, may restore Kahmann’s land to its prior physical condition but it will not dispose of the water which will be discharged upon, against and under Kahmann’s property. Under the common law rule, or “common enemy doctrine,” each landowner has an unqualified right, by operations on his own land, to fend off surface waters as he sees fit without being required to take into account the consequences to other landowners, who have the duty and right to protect themselves as best they can, 51 Central Law Journal, 360; Haferkamp v. City of Rock Hill, Mo., 316 S.W.2d 620. “ * * * Missouri has, however, as has all or substantially all of the other states purporting to follow the common enemy doctrine, modified the harshness of that doctrine. * * * ” Haferkamp v. City of Rock Hill, supra, l. c. 625. Thus it is said that the rights exercised under the “common enemy” doctrine must be exercised within reasonable limits and not recklessly, so as not to needlessly injure the servient tenements. Young v. Moore, 241 Mo.App. 436, 236 S.W.2d 740, 744. And the courts have repeatedly held that one may not artificially collect and impound surface water and cast it in concentrated and destructive quantities at one point onto the servient estate. Blydenburgh v. Amelung, Mo.App., 309 S.W.2d 150; Clark v. City of Springfield, Mo.App., 241 S.W.2d 100. It is apparent from the evidence that defendants are collecting surface water through their catch basins, concentrating it through their sewer system, and casting it in destructive quantities at one point onto Kahmann’s land. Their own witness, Wun-nenberg, a registered professional engineer from the engineering firm which designed their sewer system, testified that the effect of such concentration is to increase the velocity of the water and to cause it to wash more at the point of discharge; a result which he admitted was already occurring on Kahmann’s land.

In his petition Kahmann alleged that the concentrated discharge of water by defendants would cause irreparable and irremediable damage to his property and (by a general prayer) asked for equitable relief. The trial court found that the defendants had trespassed, that Kahmann’s land had been damaged, and that it had been depreciated in value, but that such damages were not irreparable and were compensable in money damages. It is apparent that the court denied Kahmann an injunction on the theory that his land could not be restored and that the ditch would remain to carry off the water discharged from defendants’ sewer. Defendant must take the bitter with the sweet. If on a retrial the evidence shows that the cost of restoration plus any damages for loss of use is lower than the depreciation in value, and Kah-mann is awarded only the lower amount, then in all equity and good conscience the defendants should be restrained and enjoined from discharging water collected through their sewer system upon, against, and under Kahmann’s land. Anderson v. City of Jefferson City, Mo.App., 262 S.W.2d 169, Polich v. Hermann, Mo.App., 219 S.W.2d 849.

Defendants likewise complain of that part of the judgment and decree by which the Reutners were allowed monetary damages of “ * * * $600 for the restoration of the driveway, for $450.00 for the deprivation of the use of the easement for a temporary period, and for $1,000.00 for the diminution in the value of the realty,” a total of $2,050.00. Defendants assail the last item on the grounds that there was no evidence to support the award of $1,000' on any legal theory. The Reutners seek to sustain this element of their damages on the basis of O’Toole’s testimony that the existence of manhole B, its connection with the pre-existing culvert under the roadway, and a new concrete inlet to the culvert, would depreciate the value of the Reutners’ property in the amount of $1672.00. But as the evidence showed, and as the court found, all of such installations were constructed on the western 10 feet of the 20' foot easement and on the land the fee to which is vested in the defendants, other than Arnold Vouga. All that the written conveyance did, so far as defendants were concerned, was to burden their 10 feet with an easement for roadway purposes in favor of the owners of the eastern 10 feet, including the Reutners as grantees. Defendants remained the owners of their 10 feet and as such had the right to use it for any lawful purpose not inconsistent with the Reutners’ enjoyment of their easement. Goddard on Easements (Amer. Ed.) p. 280; 28 C.J.S. Easements § 91, pp. 770, 771; State ex rel. Appel v. Hughes, 351 Mo. 488, 173 S.W.2d 45; Tracy v. Klausmeyer, Mo.App., 305 S.W.2d 84. Generally speaking, as an incident of ownership an owner of land has the lawful right to use his property in any lawful manner and for any lawful purpose. Casanover v. Villanova Realty Co., Mo.App., 209 S.W.2d 556; Clinic & Hospital, Inc. v. McConnell, Mo.App., 236 S.W.2d 384; 73 C.J.S. Property § 13, pp. 192, 193. In the absence of any zoning or other legal restrictions to the contrary, defendants had a lawful right to construct the structures on and beneath the surface of their land. It is difficult to see how the presence of such structures on and beneath the surface of defendants’ land would de-precíate the value of the Reutners property. But if, from aesthetic considerations, such was the case, the damage was damnum absque injuria.

Defendants’ remaining points are that the amount of $450 for the interference of the Reutners’ use of the roadway was excessive; and that the award to them of $600 for restoration of their driveway was erroneous because defendants' evidence showed that it had been restored. There is no merit to either point. The amount allowable for interference was not one determinable by any mathematical formula, and lay within the sound judicial discretion of the court. Taking into account the period of interference, the inconvenience which resulted, and other circumstances detailed in evidence we are of the opinion that the trial court did not abuse its discretion. As to the final point, the question of whether additional rock and work was needed to restore the Reutners’ driveway to its original condition was a disputed issue of fact. Plaintiff introduced evidence that such repairs were required, and that they would cost from $400 to $600. Defendants’ evidence was to the contrary. Obviously, the court believed plaintiffs’ evidence and rejected that of defendants, as it had a right to do. In the absence of an overwhelming weight of the evidence to the contrary, we defer to the court’s finding, particularly where, as here, the judge made a personal inspection of the property involved. Anderson v. City of Jefferson City, Mo.App., 262 S.W.2d 169.

That part of the judgment and decree awarding plaintiff Kahmann monetary damages of $10,000, and that part awarding plaintiffs Reutner $1,000 for the diminution in value of their realty, should be reversed and set aside, and the cause should be remanded with directions to hear evidence and to determine the proper amount of monetary damages to be awarded to plaintiff Kahmann; should the court find that the cost of restoring Kahmann’s land, together with such actual damages as he may have suffered by the loss of its use, is lower than the depreciation in value by reason of defendants’ trespass, and enter judgment for such lower amount, then the court should enjoin and restrain the defendants from discharging the surface water from their sewer system upon, against and under Kahmann’s land.

The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.

Accordingly, the cause is reversed and remanded with directions.

RUDDY, Acting P. J., and SAM C. BLAIR and PHIL H. COOK, Special Judges, concur.