author: HOUSER, Commissioner. PER CURIAM.

text:
    Joe O’DELL, Harold D. Varner, Wilburt Purl, et al., Appellants, v. The DIVISION OF EMPLOYMENT SECURITY of the State of Missouri, the Industrial Commission of Missouri and the Members thereof, J. R. Rose, George W. Wise and Charles E. Cates, and General Motors Corporation, Respondents.
    No. 50193.
    Supreme Court of Missouri, Division No. 1.
    March 9, 1964.

      Krings, Whipple, Mauer & Eisler, by C. David Whipple, Kansas City, for appellants.
    Lloyd G. Poole, Jefferson City, counsel for respondents, Industrial Commission of Missouri and Members thereof.
    Gordon P. Weir, Jefferson City, counsel for respondent, Division of Employment Security of State of Missouri.
    John Murphy, of Tucker, Murphy, Wilson, Lane & Kelly, Kansas City, for respondent, General Motors Corp.
   HOUSER, Commissioner.

Nine hundred and forty-seven employees of General Motors, Chevrolet Division, Kansas City filed claims for unemployment compensation benefits. Without a hearing a deputy determined that claimants were eligible and that their unemployment was due to lack of work at the premises, not to a stoppage of work resulting from a labor dispute. After a hearing before a referee the Appeals Tribunal reversed the deputy’s determination and denied all claims. The Industrial Commission, one member dissenting, denied an application for review, holding that the findings of fact of the tribunal were supported by competent and substantial evidence and that its decision was made in accordance with law. Claimants filed a petition for judicial review in the Circuit Court of Jackson County under § 288.210, joining Division of Employment Security, Industrial Commission and its members, and General Motors Corporation, hereinafter “GM,” as parties defendant. After reviewing the transcript and hearing oral arguments the circuit court affirmed the findings of the Industrial Commission and denied the claims for compensation. Following an unavailing motion for new trial plaintiffs appealed to this court. The aggregate amount in dispute totals $218,757, which vests appellate jurisdiction in this court. Flanigan v. City of Springfield, Mo.Sup., 360 S.W.2d 700.

In stating the facts we draw heavily, without the use of quotation marks, on the referee’s findings of fact, but have made deletions, rearranged the material, and added undisputed facts from the transcript where deemed appropriate.

GM operates 23 automobile assembly plants in the United States. Thirteen plants, located in Kansas City, St. Louis, and in New York, Georgia, Michigan, California, New Jersey, Maryland, Ohio, Wisconsin and Massachusetts, assemble Chevrolet automobiles or Chevrolets and Corvairs. All of them conduct a coordinated operation, identical or substantially identical to that in Kansas City, all under one roof, or substantially so. There are 6 assembly plants for Buick, Oldsmobile and Pontiac (BOP); 1 for Buick only; 1 for Oldsmobile only; 1 for Pontiac only, and 1 Cadillac assembly plant.

One of GM’s Chevrolet and Corvair assembly plants is located in the 6800 block of East 37th Street in Kansas City, Missouri. It is a single building, covering an area as large as two or three square blocks, housing both the Fisher Body Division (2,000 hourly paid workers) and the Chevrolet Division (1,950 hourly paid workers) of the Kansas City plant, under one roof. Bodies are made by Fisher Body Division in the east portion; Chevrolet and Corvair passenger automobiles and Chevrolet trucks are assembled in the west portion of the building. Approximately 30 repairmen on the payroll of Fisher Body Division work in the Chevrolet portion of the plant on Chevrolet and Corvair passenger car assembly lines alongside Chevrolet Division workers, repairing body paint and trim, an operation essential to the completion of the automobiles as saleable products. A fire wall, constructed for safety purposes after a fire at GM’s La-vonia plant in 1953, runs north and south in the building, dividing the two operations. The wall does not run the entire length of the building. On the second floor there is an open area approximately 80 feet wide between the end of the fire wall and the front wall of the building. This space permits free movement of conveyor lines carrying Chevrolet and Corvair bodies from the Fisher body side to the Chevrolet side of the premises. Across the front of the building are offices where salaried workers of both divisions are employed. There is a cafeteria for use of all employees in the building. The equipment is owned by GM, leased to a private operating company. One power plant provides power for the entire building. A common lobby for the use of both divisions is located in the front of the building. The address of Chevrolet Division is 6801 East 37th Street; the address of Fisher Division is 6817 East 37th Street. Each division has its own manager, plant protection unit, personnel, accounting and payroll departments, employment office, first-aid and pre-employment facilities, located in each division’s portion of the building. Each division has separate entrances to its area of the plant. On entering his plant area an employee is identified by a badge which is separate and distinct for each division. Fisher Division employees in the plant are paid by check drawn on Commerce Trust Company, showing it is the check of Fisher Body Division, General Motors Corporation, Kansas City Plant. Chevrolet Division employees in the plant are paid by check drawn on a different bank, showing it is the check of Chevrolet-Kansas City Division of General Motors Corporation. The plant is designed for the assembly of complete Chevrolet and Corvair passenger cars, ready to be sold and shipped to dealers for resale to the public. There are three conveyor lines on the Chevrolet Division side of the building, for the assembly of Chevrolet and Corvair passenger cars and Chevrolet trucks. The assembly of Chevrolet and Corvair bodies by Fisher workers, commenced on the assembly conveyor line on the Fisher side of the plant premises, continues on that line until the bulk of the Fisher work on the body is completed, then the conveyors take the bodies over to the Chevrolet side of the plant, through the opening between the end of the fire wall and the front of the building. The production lines on both sides of the plant are open and obvioits to everybody, and the way in which these bodies are placed on the lines and transported continually into the Chevrolet area is common knowledge, known to the officers of Local No. 93 and the members of the shop committees. Some distance inside the Chevrolet side of the building there is a cycling arrangement where the bodies are taken from the conveyor and either placed on a production assembly line or placed in a “body bank,” which has a capacity of about 60 bodies. When placed on the line, other items are installed on the bodies by Chevrolet Division workers until the bodies reach the “body drop,” where the body is dropped by a hoisting arrangement to the chassis line below and there attached to the chassis. From the body drop the conveyor line on which the body traveled from the Fisher side of the plant returns to the Fisher side, where the operation is started over again, and the entire process repeated. Production schedules of both divisions are 100% coordinated. Chevrolet has to have a body from Fisher for every passenger automobile chassiá assembled on the Chevrolet side. Fisher constituted Chevrolet’s only source of supply, except for a few sedan delivery bodies shipped in from a plant in Ohio, of which an average of 3 are used in an 8-hour shift. Fisher-Kansas City Division builds bodies only for Chevrolet Division-Kansas City, and the latter is the only user of the bodies there assembled. Fisher’s work schedules are coordinated with the Chevrolet work schedules. Normally Fisher produces 40 bodies an hour and Chevrolet Division uses the same number. Except for the body bank, no provision is made for stockpiling bodies. The two divisions arc closely coordinated as to work, number of shifts, reduction of forces on either side, close-downs for inventory, vacations or material shortages. If Fisher workers do not work, Chevrolet workers cannot work, and vice versa.

The International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the AFL-CIO, hereinafter “International Union,” is the exclusive bargaining agent for all hourly production workers in GM’s 23 plants. International Union and GM entered into a collective bargaining agreement October 2, 1958. All of the hourly paid workers working in the building, whether in the Fisher or Chevrolet Division, with a few exceptions, belong to the same International Union and to the same local (No. 93). The officers and trustees of the local are made up of both Fisher and Chevrolet Division workers. The employees of each division, however, constitute a separate bargaining unit, and each has its own bargaining committee. These committees are elected by the employees of the respective divisions. Each bargaining unit has its own local seniority and local wage agreement, subject to approval of International Union and GM. All general wage rates or pay increases are negotiated by GM’s central office staff in Detroit and International Union. Employees transferred from one division to the other lose their seniority, except with respect to certain matters such as vacation pay.

A dispute arose regarding wages and working conditions of certain Fisher Body Division employees at Kansas City. Complaint was made about “too much work” and “excessive line speeds.” In an effort to resolve the issues meetings, attended by the bargaining committee of the local Fisher Body Division employees, members of GM’s local Fisher Body Division personnel staff, members of GM’s industrial relations staff in Detroit and International Union’s central office staff in Detroit, were held. The issues were not resolved. A strike vote was taken. Only local Fisher Body Division employees were eligible and only they took part in this vote. Chevrolet Division employees did not vote. The majority voted in favor of a strike. The strike was approved by International Union, and a strike was called at 9:51 a. m. on March 29, 1960. All local Fisher Body Division workers answered the strike call. The local Chevrolet Division employees were notified by the union to remain on their jobs until they were laid off by management, then immediately apply for unemployment compensation. The strike brought to a standstill the production of bodies by the Fisher Body Division. The local Chevrolet Division employees continued to work until 11 a. m. on the day of the strike, one and a half hours after the Fisher Body workers struck, when the supply of bodies was exhausted. At that time approximately 1,300 Chevrolet Division workers were sent home. Approximately 620 workers on the truck line and about 30 maintenance workers continued to work throughout the strike. Fisher Body Division employees picketed the entrance to the Fisher Body Division operations. Chevrolet Division workers did not at any time perform any picket duty. During the strike, which continued from March 29, 1960 until settlement, ratification, and resumption of operations, which occurred on May 29, 1960, Fisher Body Division workers received financial assistance from International Union in the form of strike benefits as provided by the constitution depending on number of dependents, length of the strike, etc. Chevrolet Division workers out of work because of the strike received loans from International Union throughout the same period, figured on the same basis that strike benefits were paid. The financial assistance provided to the Fisher Body and Chevrolet Division members of Local No. 93 from the union’s strike insurance fund amounted to a sum in excess •of $400,000.

The National Agreement and the constitution of International Union were intro•duced in evidence.

While ordinarily it is the appellate function in a case of this type to decide whether the findings of the Commission are supported by competent and substantial evidence upon the whole record, § 288.210, and whether they were authorized by law, Art. .5, § 22, Missouri Constitution of 1945, V.A.M.S., the question on this appeal is •solely one of law, because there was no conflict in the evidence on any material issue. Dubinsky Brothers, Inc. v. Industrial Commission of Mo., Mo.Sup., en banc, 373 S.W.2d 9, 16.

The law question involves the construction of certain language in paragraph 4 of § 288.040 of the Employment Security Law, Chapter 288, V.A.M.S., which follows:

“(1) A claimant shall be ineligible for waiting week credit or benefits for any week for which the deputy finds that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute in the factory, establishment or other premises in which he is or was last employed; * * * and provided further, that if in any case.separate branches of work which are commonly conducted as separate businesses at separate premises are conducted in separate departments of the same premises, each such department shall for the purpose of this subsection be deemed to be a separate factory, establishment or other premise; and provided further, that this subsection shall not apply if it is shown to the satisfaction of the deputy that

“(a) He is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and

“(b) He does not belong to a grade or class of workers of which, immediately preceding the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute.

“(2) ‘Stoppage of work’ as used in this subsection means a substantial diminution of the activities, production or services at the establishment, plant, factory or premises of the employing unit.”

The general purpose of Chapter 288 is to provide for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. The Act is to be liberally construed. § 288.020; ACF Industries, Inc. v. Industrial Commission of Mo., Mo.Sup., en banc, 320 S.W.2d 484. Disqualifying provisions are to be narrowly construed. Kroger Co. v. Industrial Commission of Mo., Mo.App., 314 S.W.2d 250. A liberal construction must be a fair and reasonable construction. The words and terms of Chapter 288 are to be used and construed in their plain, ordinary sense. ACF Industries, Inc. v. Industrial Commission of Mo., supra.

Section 288.040, subd. 4(1), which withdraws the benefits of the Act from those whose unemployment is due to a stoppage of work existing because of a labor dispute in the factory, establishment or other premises in which he is last employed, constitutes a legislative affirmation of the public policy that the state shall preserve a neutral position in labor disputes; á legislative recognition of the essential injustice of forcing an employer to assist in the financing of employees with whom the employer is engaged in a labor dispute, by requiring the payment of unemployment compensation benefits during a work stoppage. In re Ferrara’s Claim, 10 N.Y.2d 1, 217 N.Y.S.2d 11, 176 N.E.2d 43. “[I]t would be unfair to use funds built up by labor and management jointly to support labor in a contest wherein it was exerting economic pressure against management by striking.” Olof Nelson Const. Co. v. Industrial Commission, (1952) 121 Utah 525, 243 P.2d 951, 960. Our construction must not thwart the provision that the benefits are to be withdrawn in case of (1) a stoppage of work (2) existing because of a labor dispute (3) in the factory, establishment or other premises in which the claimant was last employed. The disqualifying provision, however, does not apply if the “separate branches of work” proviso is applicable, or if claimant shows that clauses (a) and (b) apply to him.

The burden of proof of the right of claimants to unemployment benefits under the Act, Producers Produce Co. v. Industrial Commission of Mo., 365 Mo. 996, 291 S.W.2d 166, 173, and under clauses (a) and (b), Poggemoeller v. Industrial Commission of Mo., Mo.App., 371 S.W.2d 488, 504, [10, 11], is on the claimants.

Specifically, the first question on this appeal is whether the Chevrolet Division of GM at Kansas City, where claimants were last employed, is a separate “factory, establishment or other premises” from the Fisher Body Division of GM at Kansas City. If so, the nonstriking claimants’ unemployment was not due to a stoppage of work existing because of a labor dispute in the factory in which they were last employed, and they would not be ineligible under the first clause of § 288.040, subd. 4(1). But if claimants were employed in the same factory in which the striking employees of Fisher Body Division of GM at Kansas City were employed, they would be ineligible thereunder.

Our conclusion is that the words “factory, establishment or other premises” signify the place, location or situs of the claimant’s employment, Kroger Co. v. Industrial Commission of Mo., Mo.App., 314 S.W.2d 250, 254 [3], and in the case of factories such as GM’s Kansas City plant do not refer to lesser units than factory-wide units of employment.

In determining that the separate functions of the Chevrolet and Fisher Body Divisions constitute a single factory, and not separate factories, we have applied the tests of functional integrality, physical proximity and general unity. Anno: Unemployment Benefits—Labor Disputes, 28 A.L.R.2d 287, §§ 15, 16, 17, beginning p. 324; Adamski v. State Bureau of Unemployment Comp., (1959) 108 Ohio App. 198, 161 N.E.2d 907; Snook v. International Harvester Co., Ky.App., 276 S.W.2d 658; Claim of Lasher, 279 App.Div. 505, 111 N.Y.S.2d 356; Mountain States Tel. & Tel. Co. v. Sakrison, 71 Ariz. 219, 225 P.2d 707; Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209.

The test of functional integrality is fully satisfied. The assembly plant of GM at Kansas City is a highly integrated, coordinated factory, employing a continuous-flow assembly line, turning out a finished product which results from the joint effort of both divisions, Chevrolet and Fisher Body. The two divisions are absolutely interdependent. The operation of the Chevrolet Division assembly line depends upon the production of bodies produced by Fisher Body Division. These bodies are produced solely for use on that assembly line and no other, and are not sold to other manufacturers or to the public. Conversely, the operation of Fisher Body Division depends upon the provision of chassis assembled by Chevrolet Division, ready to receive bodies made by Fisher Body employees. The chassis assembly division could not continue functioning without the product of the body division; it has no other source of supply. The two units are jointly and simultaneously engaged in the production of automobiles, not only of chassis and bodies. They both operate assembly lines that are correlated and synchronized, at the ends of which the completed product, ready for market, emerges. After the assembly lines of the two units merge and join chassis and body at the body drop, employees of both divisions work side by side on the production line, collaborating in the common effort. Working together they produce a complete, finished, saleable product. The over-all operation is a highly intermeshed, integrated, moving continuously flowing progression.

As far as physical proximity is concerned, we have found no instance of a closer identity than that demonstrated by the two divisions of this automobile factory, which are located at the same place, in the same building, within the same walls, on the same floors, under the same roof. Heat is supplied both divisions by the same heating system. Water is supplied both from a common water tower. A single traffic department serves both divisions. They share a joint lobby, joint cafeteria service, joint parking lots. Physically, the operation is one unit.

The fact that a fire wall partially separates the two divisions is not significant, because it was built for safety purposes, not to effect a physical separation. The fact that the hourly rated employees of the two divisions have separate entrances or that the two divisions in the same building have different street numbers do not make these divisions separate factories.

There is a general unity of concept, plan and execution at the GM factory in Kansas City. It is organized for the assembly of passenger automobiles and trucks. For greater organizational efficiency there are two divisions, each with its own plant manager, personnel staffs, accounting departments, employment offices, pre-employment examination facilities, first-aid departments, and plant protection units. The management in each division, however, administers, the identical company policies and personnel and employment practices, which are promulgated by the higher officials of the company in Detroit. All employees at the GM factory in Kansas City, both in the Chevrolet and Fisher Body divisions, are employed by the same employer, GM, a single employing unit. While different clerks prepare the payrolls under the divisional method of organization, all employees of both divisions are paid by the sole employer, GM. Section 288.100, subd. 1(1) provides that “The division [of employment security] shall maintain a separate account for each employer, and shall credit his account with all contributions which he has paid.” Nothing in the record indicates that in the administration of Chapter 288 GM is treated other than as a single employer with but one account. The suggestion that the two divisions are to be considered as separate factories because they produce different products fails because they jointly produce the same product — automobiles—and not chassis and bodies, as separate entities. There is complete unity on both local and international levels in the union affiliation of the employees of the two divisions.

Claimants argue that these are two separate factories because each division has its own bargaining unit and shop committee which handle local grievances and may enter into local agreements concerning wages, seniority and working conditions; that the labor dispute in question was between the Fisher Body plant shop committee and the Fisher Body management; that Fisher Body employees only, and not claimants, voted on the strike, and that the settlement had nothing to do with the operation in the Chevrolet Division. All of the hourly rated employees at the GM factory in Kansas City, whether Chevrolet or Fisher Body employees, belong to the same international union, and to the same local union (No. 93) of the International Union. All of them are subject to the National Agreement between GM and UAW-AFL-CIO. That union is the certified and recognized exclusive bargaining representative of all of the hourly rated production and maintenance employees of GM at the Kansas City factory. The fact that Fisher Body Division employees have their own shop committee, made up of Fisher Body employees, which handle local grievances and may enter into local agreements concerning wages, seniority and working conditions (subject to approval by the International Union) does not militate against the obvious and impelling fact that the Fisher Body and Chevrolet Division employees were engaged in a common business or enterprise in the same factory, and not in separate factories. There is nothing in the Act which supports the conclusion that in a factory in which there are two divisions of employees represented by different bargaining units and having different shop committees the two divisions constitute different factories. Snook v. International Harvester Co., supra, 276 S.W.2d, 1. c. 661, [2],

Claimants cite Kroger Co. v. Industrial Commission of Mo., Mo.App., 314 S.W.2d 250; Ford Motor Co. v. Unemployment Compensation Comm., 191 Va. 812, 63 S. E.2d 28; Park v. Employment Security Comm., 355 Mich. 103, 94 N.W.2d 407; Nordling v. Ford Motor Co., 231 Minn. 68, 42 N.W.2d 576, 28 A.L.R.2d 272, and Koll v. Egekvist Bakeries, Inc., 259 Minn. 287, 107 N.W.2d 373, all of which are distinguishable on the facts. The Kroger Company case is not analogous for there was no such “interdependence” between and among the 52 retail store outlets and the bakery and warehouse where the strike occurred “as to constitute any one store an integral part of one 'establishment’ in the sense of the statute or that would justify the application of the theory of ‘functional integrality.’ ” In the Virginia and Minnesota Ford Motor cases and in the Park case the physical proximity factor was totally lacking. In the first two cases the unemployed nonstriking workers were employed in the assembly plants at Norfolk, Virginia, and St. Paul, Minnesota, respectively, but the strikes occurred in the parts department at Dearborn, Michigan. In the Park case claimants were employed in three plants in Michigan in the vicinity of Detroit, but the plant where the strike occurred was located at Canton, Ohio. Although Park repudiated “integral functioning” as a basic test of “establishment” it is interesting that the Michigan legislature last year restored functional integration as the test, § 17.531, Michigan Statutes Annotated, as amended by Act 226, Public Acts of 1963, § 29(1) (b), thus in effect reinstating the ruling on that point in Chrysler Corporation v. Smith, 297 Mich. 438, 298 N.W. 87, 135 A.L.R. 900. Koll v. Egekvist Bakeries, Inc., supra, is not in point because there the two groups of workers were employed by two separate and distinct employers, the two establishments were entirely independent of each other, and in all important physical respects the two operations were separate and distinct.

In the great bulk of the cases on this general subject the two plants, one of which makes component parts and the other of which assembles the parts into a finished product, will be found physically separated by considerable distances — always by many miles, sometimes separated by state lines. Even in cases of wide separation of units many courts have found them to constitute a single “establishment,” where there is a high degree of functional integration. In the only two cases we have found where the two units were located at the same place and there was functional integrality, compensation was denied on the ground that the strikers and nonstrikers were working in the same establishment. In Snook v. International Harvester Co., Ky.App., 276 S.W.2d 658, tlie company operated a machine shop for the assembly of farm equipment. The company erected, in close proximity and within the same fenced enclosure, a separate building known as the foundry, to produce castings for use in the assembly of tractors in the adjacent machine shop. Appellants were employed in the foundry. A strike occurred in the machine shop, as a result of which appellants were “laid off.” Denied compensation below, appellants took the position on appeal that considering the situation from the standpoint of employment alone, the foundry and machine shop were separate because of the difference in the type of work done, the terms of employment, different immediate supervisors, and that the employees in the two buildings belonged to different unions. It was held that the machine shop and foundry could not be considered separate establishments; that they were functionally integrated; that there was a general unity both in the operation of the plant and in the nature of their employment, and that their physical proximity was such as to constitute a single unit; that the plant itself, composing both departments, was “a distinct physical place of business” and that the strike in the machine shop was in active progress in the establishment in which claimants were employed.

In Claim of Lasher, (1952) 279 App.Div. 505, 111 N.Y.S.2d 356, under a similar statute, Bethlehem Steel Corporation maintained a plant at Lackawanna, New York, where it manufactured steel, and employed a number of steelworkers who were members of the steelworkers’ union. It also engaged there in construction work and erection of the finished steel product through a branch known as the Fabricated Steel Construction Division, Erection Department, employing a number of workers who were members of an ironworkers’ union. The steelworkers went on strike, and after a shortage of steel developed the ironworkers were notified that there was no work for them. They filed claims for unemployment compensation, which were denied on the ground that they “were employed by the same employer as the striking steel workers, and were employed at the same plant and upon the identical premises. The work which they were performing was as essential to the production of steel at the plant as the work of the steel workers. * * * [Tjhey were clearly employed in the ’establishment’ where the industrial controversy arose. To hold otherwise would be tantamount to a holding that employees regularly working at the same plant but in a different department, or doing a different kind of work, or belonging to a different union than striking employees, would not be employed in the same ‘establishment.’ Clearly this was not the intent of the statute. * * * The undisputed evidence establishes that the industrial controversy occurred ‘in the establishment’ where claimants were employed.”

We have concluded that the building, place, location and premises where the Chevrolet Division employees and the Fisher Body Division employees were working was a single automobile factory, and that the factory where claimants were employed was the same factory in which the work stoppage arising out of a labor dispute occurred.

The proviso of § 288.040, subd. 4(1) that a department shall be deemed a separate factory where separate branches of work which are commonly conducted as separate businesses at separate premises are conducted in separate departments of the same -premises has no application for the reason •that under this record the only evidence ■on this issue is that the so-called “separate” branch of work (the manufacture and as■sembly of automobile bodies) is not commonly conducted as a separate business .at separate premises. The evidence in this transcript shows that in all thirteen of the •Chevrolet or Chevrolet-Corvair plants of ■GM, and in all six of its Buick, Oldsmobile, Pontiac plants, the bodies are manufactured .and assembled in one plant. The only instances in which bodies are manufactured in a separate plant are in the case of trucks, .and in making Cadillac, Buick, Oldsmobile .and Pontiac automobiles in the Detroit .area. The work of assembling Fisher bodies, therefore, on this record is not “commonly conducted” at “separate premises,” nor is it conducted as a “separate 'business.” Bodies are manufactured by GM as an integral part of its own business. It does not buy bodies from other manufac-turers. It makes its own Chevrolet and Corvair bodies in its own plants, immediately adjacent to the assembly lines which join with the chassis assembly lines to produce .a complete automobile. The only conclusion to be drawn from the evidence is that the two divisions in the Kansas City plant .are not separate branches of work which .are commonly conducted as separate businesses at separate premises, but are integrated branches of work which are commonly conducted as one business at the same premises.

Claimants having been idled by .a labor dispute within the meaning of the section were ineligible for unemployment ■ compensation benefits unless subparagraph (1) is inapplicable by reason of clauses (a) and (b). No worker unemployed because of a strike arising out of a labor dispute under the section can recover benefits •unless he proves that he is not participating in the labor dispute, is not financing it, ■is not directly interested in it, and that he :is not of the same grade or class of workers as the strikers. Although the evidence shows that claimants did not vote for the strike, go out on strike, or picket, there was no showing that they did not participate in the labor dispute, in other ways, and they failed to prove that they were not financing the strike, and that they were not directly interested in it and that they were not of the same class of workers as the strikers. These limitations on the right to benefits must be given effect, and having failed to sustain the burden of proof with respect thereto, claimants are ineligible for unemployment compensation. Section 288.040, subd. 4(1) (a) (b); Producers Produce Co. v. Industrial Commission of Mo., supra; Poggemoeller v. Industrial Commission of Mo., Mo.App., 371 S.W.2d 488, 504. Not only did claimants fail to sustain the burden of proof that the disqualifications were inapplicable to them, but the undisputed evidence affirmatively shows that they belonged tc the same class of workers as the strikers. Regardless of the differences in the nature of their individual duties, claimants and the strikers were all maintenance and production workers in the automobile manufacturing business of their employer, doing essentially the same type of work, i. e., the production work of assembling complete automobiles, in a highly integrated operation, and as such belonged to the same class. Dravo Corp. v. Unemployment Compensation Board of Review, 187 Pa.Super. 246, 144 A.2d 670; Unemployment Compensation Commission v. Martin, 228 N.C. 277, 45 S.E.2d 385. '

Judgment affirmed.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Section references are to RSMo 1959, V.A.M.S., unless otherwise indicated.

      . Except where the “separate branches of work” proviso applies.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    John W. KILLIAN, Plaintiff (Appellant), v. WHEELOC ENGINEERING COMPANY, a Corporation, Defendant (Respondent).
    No. 50063.
    Supreme Court of Missouri, Division No. 2.
    March 9, 1964.
    Gray, Sommers & Jeans, Don B. Som-mers, St. Louis, for plaintiff (appellant).
    John J. Cole, Heneghan, Roberts & Cole, St. Louis, for defendant (respondent).
   BARRETT, Commissioner.

John W. Killian, a laborer employed by a general contractor, claimed to have been injured when he stepped from a homemade ladder into a pile of metal duct work left on the basement floor of a house under construction. Killian’s employer, the B & F Construction Company, was the general contractor engaged in building three to four hundred houses of almost identical dimensions in Larimore Hills Subdivision. According to Killian the pieces of tin were left at the foot of the ladder by a tinner employed by a subcontractor, the respondent, Wheeloc Engineering Company, who had the contract to install the furnaces and duct work in all the houses. When the case was previously appealed it was held upon evidence substantially identical with the proof adduced upon this trial that the respondent’s negligence and liability and the plaintiff’s contributory negligence and hence the respondent’s non-liability were both jury questions. Killian v. Wheeloc Engineering Co., Mo., 350 S.W.2d 759. Upon the submission of his cause in this the second trial a jury returned a verdict in favor of the respondent subcontractor and after the overruling of his motion for a new trial the plaintiff has appealed. And the essentially meritorious question is whether the giving of instruction 8 which submitted the plaintiff’s contributory negligence was manifestly erroneous and prejudicial and demands the granting of another trial by this court.

Italicizing the language complained of as making the instruction prejudicially erroneous this is the clause complained of:

“(A)nd if you further find that such negligence on plaintiff’s part caused or contributed in any way to cause his alleged injuries, then your verdict shall be in favor of defendant, Wheeloc Engineering Company, and this is so even though you should also find said defendant was negligent under the evidence and instructions of this Court.”

The complaint is that in omitting either the words “directly” or “proximately” preceding the italicized phrase there is a failure to require “the jury to find that negligence of the defendant (sic) either directly or proximately caused or contributed to his accident.” Therefore, it is contended, the instruction “allows the jury to find remote negligence on the part of the plaintiff, as a bar to his recovery.”

It is a general principle that verdict directing instructions must require a finding not only that the negligence or contributory negligence relied on was a cause but that it was a direct and proximate cause of the injury. Creech v. Blackwell, Mo., 318 S.W.2d 342; Waldrip v. American Buslines, Inc., Mo., 327 S.W.2d 211. And in general the function of the words “directly” or “proximately” in an instruction submitting contributory negligence is to exclude from the jury’s consideration some remote act as a contributing factor and to require if not compel a finding of causal connection between the negligent act relied on and the injury. Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912; Young v. Kansas City Public Service Co., Mo., 270 S.W.2d 788. There is no magic, however, in either of the terms even though their use has been recommended as a means of avoiding criticism and possible misinterpretation. Creech v. Blackwell, supra. When these or synonymous terms are omitted from contributory negligence instructions the problem is whether “the implication of causation” has been improperly weakened (Annotation 102 A.L.R. 411, 412) and degrees or percentages of negligent conduct submitted. Annotation 87 A.L.R.2d 1391, 1442-1443. But in this connection it is obvious that the language of instruction 8, “caused or contributed in any way to cause,” is not comparable to the phrase “concurred in any degree, however slight” in one of the three contributory negligence instructions in Danner v. Weinreich, Mo., 323 S.W.2d 746, 751. See also Perkins v. Kansas City Southern Ry. Co., 329 Mo. 1190, 49 S.W.2d 103.

There is another recognized modification, sometimes called an exception to the rule, to the requirement of employing the terms “directly” or “proximately” to denote the finding of causal connection; “(i)f an instruction on contributory negligence requires the finding of negligent acts which, in the nature of things, necessarily contributed directly to cause the injury and necessarily formed a part of the efficient cause thereof, then the instruction cannot be held erroneous because it does not require the jury to draw the inference which the law itself draws therefrom.” Carr v. City of St. Joseph, Mo., 225 S.W. 922, 923; Creech v. Blackwell, supra; Young v. Kansas City, supra. It is not claimed here that there was no factual basis for the hypothesis of instruction 8 which in terms is almost a direct converse or negation of the plaintiff's submission of the defendant’s liability. Insofar as material here the principal instruction submitted that while in the exercise of due care for his own safety Killian descended the ladder into the basement, that “a piece of metal duct was situated in close and dangerous proximity to the base of said ladder and that the plaintiff stepped off of the ladder at the bottom thereof and that his right leg came into contact with and struck said piece of duct work and that plaintiff was thereby injured” and defendant should have known of the hazard he, plaintiff, was entitled to recover. As constituting contributory negligence and in effect conversely instruction 8 said that if the jury found that as Killian “descended the ladder on the occasion mentioned in evidence, there was sufficient natural light to readily reveal the basement floor and pieces of building materials lying thereon * * * and * * * that after plaintiff started down said ladder, and before he started to step off of it, he failed to look at the floor close to the bottom of the ladder * * * and * * * that in so failing to look, under the circumstances, plaintiff did not exercise ordinary care for his own safety and well being, then you are instructed that plaintiff was negligent, and if you further find that such negligence on plaintiff’s part caused or contributed in any way to cause his alleged injuries” he could not recover. Thus there was here involved the simplest of issues of negligence and contributory negligence, negligently leaving pieces of metal duct on the floor near the ladder and failure of the plaintiff to look as he descended and stepped from the ladder. Plainly there was no possibility of any other act of negligence, remote or near, that could enter into the jury’s consideration as either a cause or contributing cause of the plaintiff’s injuries. White v. United Railways Co., 250 Mo. 476, 157 S.W. 593.

The case nearest in point factually is Barr v. Missouri Pacific R. Co., Mo., 37 S.W .2d 927. There a motorman alighted from a streetcar to look for trains and was injured, as he alleged, by reason of the fact “that defendant carelessly and negligently placed small stones, rock, and debris on the traveled portion of Gravois avenue near the safety zone, making it dangerous to persons walking thereon.” On behalf of the defendant an instruction informed the jury that if it found that plaintiff “saw, or by the exercise of ordinary care on his part could have seen such stone, rock and debris in time to avoid stepping thereon or collision therewith, * * * then your verdict must be for the defendant.” An order granting plaintiff a new trial was affirmed but as to this instruction the court said: “The instruction under consideration simply told the jury that, if plaintiff, by the exercise of ordinary care, could have avoided stepping thereon, then plaintiff is not entitled to recover. The instruction requires the jury to find plaintiff guilty of acts or omissions that must as a matter of necessity have directly contributed to the injury. That is sufficient.” More to the point insofar as any point of substantive law may be involved is Roeslein v. Chicago & E. I. R. Co., Mo, 214 S.W.2d 13, a railroad crossing case in which the defendant submitted as contributory negligence the hypothesis of plaintiff’s failure to see the approaching train in time to avoid a collision and “that such negligence, if any, on plaintiff’s part contributed to the cause of his injury.” In holding that the instruction was not prejudicially erroneous this division of the court said, “We think it plain enough that these instructions required the jury to find specific facts which, from their nature, not only constituted negligence, but which, if found, also contributed to cause plaintiff’s injury.”

There is another assignment that the court erred in giving instruction 14, but “the citation of authorities” (Sup.Ct. Rule 83.05, V.A.M.R.) by both parties “Mo. Dig, Trial, Sec. 252(1) and cases cited” is less than helpful. Then too it appears that instruction 14 had to do with the award of damages, a problem the jury did not reach, and therefore the giving of the instruction could not have been prejudicial to the appellant. Dryden v. St. Louis Public Service Co., Mo., 264 S.W.2d 329, 332; Scott v. Gray, Mo., 337 S.W.2d 38, 43.

For the reasons indicated, in this most elemental and twice-tried action, instruction 8 was not prejudicially erroneous to the plaintiff and the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the judges concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Roy Lee ENGBERG, alias Walter Johnson, Appellant.
    No. 50188.
    Supreme Court of Missouri, Division No. 2.

    March 9, 1964.

      John G. Madden, Jr., Donald E. Willson, and Larence C. Schrader, Kansas City, for appellant.
    Thomas F.'Eagleton, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
   PRITCHARD, Commissioner.

Defendant was found guilty of the offense of first degree murder by the verdict of a jury and his punishment was assessed by the jury at life imprisonment. After an unavailing Motion for New Trial, defendant has perfected his appeal to this court. Inasmuch as defendant contends that the state failed to make a submissible case, and the evidence fell short of showing the applicability of the submitted felony-murder doctrine (Section 559.010, RSMo 1959, V.A.M.S.), we set forth the facts in some detail.

The bizarre events of the early morning hours of June 8, 1962, and subsequent happenings, began with an armed robbery of a neighborhood tavern located at Ninth and Brighton streets in Kansas City, Missouri. This robbery is the felony relied upon by the state to sustain the conviction of defendant for first degree murder, the homicide having been committed some time later in a north-south alleyway on Thirty-Sixth Street between Harrison and Troost streets.

The facts of the robbery were testified to by witnesses W. F. Rawn and his wife Leora. They owned and operated the business known as the Community Tavern at 5000 East Ninth Street (Ninth and Brighton streets) in Kansas City, Missouri. At about one o’clock in the morning of June 8, 1962, two men came into the tavern, taking seats at opposite ends of the bar. They each had a couple of drinks, and finally one of them, identified by both Mr. and Mrs. Rawn as being the defendant, got up, went over by the telephone near the open front door, reached in his pocket, pulled out a revolver, broke it open and snapped it shut, and said, “This is a holdup.” All the persons present were herded back to the ladies’ room, after which Mrs. Rawn was required by the men to return to the bar and open the safe. Somewhere in the neighborhood of $235.00 in paper currency and change was taken. Mr. Rawn identified State’s Exhibit 1 as being the straw hat worn by defendant at the time of the robbery.

On the evening of June 7, 1962, four employees of the Gas Service Company, William D. Willsey, Ted Francis Gum-minger, Robert G. Fetters, and Charles Edward Coleman, had been to a pipe fitters’ union meeting at the American Legion Hall at Linwood and Paseo avenues until around midnight and had thereafter gone to the Lorelei Bar in downtown Kansas City where they stayed about an hour. They then proceeded back to the Legion Hall to pick up other automobiles, and when they arrived at Linwood and Charlotte, Willsey, the driver and owner of a 1956 Chevrolet convertible, pulled up at the stop light next to the left side of a 1962 white Galaxie Ford, with the front of the Chevrolet about even with the back of the Ford. There appeared to be only two persons in the Ford, a woman driving and a man sitting close to her. This prompted a remark from one of the men, Ted Francis Gumminger, in the Chevrolet, “Which one of you is driving?” Whereupon the man in the Ford reached around the driver and shot out the right front headlight of the Chevrolet.

The Ford Galaxie then turned to the right and south on Charlotte. With what appears to be great intrepidity, Willsey and his’ three companions followed the Ford and found it parked against the curb on Thirty-Fourth Street between Charlotte and Campbell. As they passed the car, one man who was out of it fired two shots. They then heard a gun click. Willsey then stopped and backed up, and the man came over to the side of the Chevrolet, stood right next to it and shot a hole in the right door. At this point intrepidity ceased and Willsey drove off and as he was doing so another shot was fired by the man which went through the back window and out the front windshield.

Gumminger was the only one of these four men who identified defendant as the man who fired the shots. He also got the license number, AW-7097, of the 1962 Ford Galaxie. Three of these four men identified the woman who was driving the Ford as Charlotte Marie Martin when she was brought by the police to the downtown police station with another man, Jack Lamphere. Lamphere had been arrested with Charlotte by officers Deaner and Pinkston, Lamphere having been found by the officers lying down on the rear floorboard of the Ford.

The deceased, George Wilber, a special officer of the Kansas City Police Department, was a partner of the husband of witness Ann Smith in the Alarm Engineering Company. Wilber was on duty the morning of June 8th, and Mrs. Smith received a radio dispatch from him at about 1:42 A.M., whereupon she called the police.

William Phillip Nichols lived in the rear apartment at 3606 Troost Avenue. He was awakened by what sounded like two gunshots in the alleyway, then he heard voices say, “Did you get him?” and “Hell, yes. Let’s get out of here.” He then heard tires squeal and an engine roar.

Airman Duane E. Finch was parked facing south in his car with his girl friend in front of a garage next to the north-south alleyway at 3601 Harrison. The time was between 1:15 and 1:45 A.M., and he had been there about five to ten minutes when two automobiles pulled into the alleyway, a white Ford first, which was immediately followed by a green Ford (identified as deceased’s). He heard someone shout “halt” and there were three immediate shots. About five minutes later he saw a man come walking down on the north side of Thirty-Sixth Street. This man had a revolver in his hand. Finch saw a red light flashing and the man hid in the bushes, and after a police car went by, this man came across the street. There were street lights in the area and Finch identified the man as defendant.

Robert J. Kelly, Jr., a Detective-Lieutenant, arrived at the homicide scene at approximately 2:30 A.M., and observed the body of deceased, George Wilber, lying face down at the left rear of a 1960 blue (green?) Ford. There was a pencil (State’s Exhibit 21) which looked as though it had been broken lying eight feet north of the rear of the car, and a matching pen was found in the shirt pocket of deceased. When he examined the body, there appeared to be an entrance gunshot wound in the center of the spine, and another wound which came out directly behind the left shirt pocket. He found no powder burns on the shirt, and he gave his opinion that a .38 caliber pistol would have to be farther away than a foot to leave no powder burns.

Detective Robert Cool also observed the body of deceased, and found an unfired .44 caliber Smith & Wesson magnum revolver, fully loaded and cocked lying near the right hand underneath the body of the victim.

Police officers Edward Deaner and Willie Pinkston were partners in a patrol car in the district. At 1:33 A.M., being then southbound from Armour Boulevard (Thirty-Fifth Street) on Forest, they received a call in regard to the shootings by the occupants of a white 1962 Ford at the occupants of a white and blue Chevrolet. Deaner and Pinkston then came west on Thirty-Sixth Street, turned north ■on Troost, and in the 3500 block on Troost they picked up a 1962 white Ford with what appeared to be two occupants — one female who was driving and a male passenger. Deaner, who was driving, turned his headlights on bright and turned on the red light and siren, and when the traffic light changed at Armour and Troost, the white car turned slowly east and then back ■south on Forest, with the patrol car following closely. The white Ford stopped at approximately 3510 Forest. Deaner stepped out of his car and turned on his spotlight. He drew his service revolver and laid his arm over the top of the police car pointing in the direction of the passenger in the Ford. The passenger jumped out with a blue steel revolver in his hand, glanced quickly back in the direction of the officers, immediately turned and started running down the sidewalk to the south. Deaner fired a shot into the air, called “halt” several times, and then fired at the suspect. Pinkston, who got out of the patrol car at the same time the fleeing suspect got out of the Ford, also fired twice at him. Deaner identified defendant as the person who was in and who ran from the stopped Ford.

Deaner then walked up beside the car and saw someone else (a third person) lying on the back floorboard. He arrested the two and turned them over to officer Billy L. Trollope, who took them to the police station. The woman first said her name was Leslie Stiles, but later said her name was Charlotte Martin. The other man who was arrested was Jack Lamphere.

Robert W. Wark, a Sergeant with the Police Department laboratory, was in charge of the field crew at the scene of the homicide. He arrived there at 2:38 A.M., and took photographs of the scene and of the 1962 white Ford Galaxie, some of which show its license number, AW-7097, of the state of Colorado. State’s Exhibit No. 18 shows the interior of the Ford, with money on the rear floorboard. Wark also found deceased’s pencil, State’s Exhibit No. 21, lying on the ground, and he picked up from next to deceased’s body State’s Exhibit No. 20, which is a .38 caliber slug upon which he placed his initials. Wark also identified State’s Exhibit No. 22, which is a .38 caliber slug handed to him by officer Pinkston who testified he took it from the mechanic at the Police Garage who in his presence removed it from the right door of Willsey’s 1956 Chevrolet convertible. State’s Exhibit No. 1, a straw hat, was also in the Ford, this being identified by witness Mr. Rawn as having been worn by defendant at the time of the tavern robbery.

James F. Campbell took charge of the money which was taken from the Ford. He testified that $26.00, all in change, was found in the trunk of the car. The balance of it, $153.00, was all in paper currency, and was taken by Campbell from the rear floorboard behind the driver.

Joanna Marie Wallace, residing at the time of the trial at 1308 Ewing in Kansas City, having been out on bond since July, 1962 (for what offense does not appear), testified that she first met defendant in Denver, Colorado, on May 27, 1962. Two days later Joanna with a girl who was introduced to her as Leslie, a man by the name of Jack Lamphere and defendant made a trip in a 1962 Ford Galaxie automobile to St. Louis via Kansas City. On the way, about three miles west of Coolidge, Kansas, at a small roadside park, some target practice was done by defendant, Lamphere, and the other girl (whom Joanna later learned was Charlotte Marie Martin). The gun was a .38 caliber pistol, which Joanna testified belonged to defendant, but which Charlotte kept in her possession “when it was not in use” in a large purse. After the target shooting, the four went on to St. Louis and stayed at the Holiday Motel where defendant registered under the name of Walter Johnson. They stayed in St. Louis a week, then came back to Kansas City, arriving on June 6. The four of them registered at the U-Smile Motel on Highway No. 40 and a dog which they had brought from Denver was then put in the Blue Ridge Kennel.

On June 7, Joanna stayed with the three others until around 5:00 P.M., and after dinner they dropped her olf at her mother’s house in Independence, and she did not thereafter see the defendant. Following her arrest, Joanna went with officer Harlow to the roadside park near Coolidge, Kansas, where the target practicing was done.

Detective Sidney A. Harlow went to Denver, Colorado, on June 27, 1962, and returned two days later with defendant whom he and two other officers had picked up at the city jail in Denver. Upon being brought back to Kansas City, defendant identified State’s Exhibit No. 23 to Harlow as being the U-Smile Motel receipt signed by him using the name Walt Johnson.

On February 6, 1963, Harlow and his wife went with Joanna Wallace to the little roadside park which was .7 of a mile east of the Kansas-Colorado line, where Joanna directed him to a tree stump where he located one .38 caliber slug, State’s Exhibit No. 24, which he removed from the stump, brought back to Kansas City and turned over to Bill Myers of Ballistics.

Bill Myers compared the three slugs (State’s Exhibit No. 20 — picked up from the ground at the homicide scene; State’s Exhibit No. 22 — taken from the right door of Willsey’s Chevrolet; and State’s Exhibit No. 24 — taken by Harlow from the Kansas tree stump) and it was his opinion that they were all lubaloy copper-coated .38 caliber bullets which came from short Colt, western manufacture, cartridges which are more or less extinct — -guns are not manufactured for that particular cartridge at present. From the land and groove marks (all of the same width) of these slugs it was his further opinion that they all came from the same gun, a British Enfield .38 caliber revolver.

Johanna Scott with her husband owned and operated the Blue Ridge Animal Clinic at 12626 East Highway 40, Independence, Missouri. On June 7, 1962, between 1:00 and 1:30 o’clock in the afternoon, defendant, giving his name to her as Walt Johnston, brought in a dog to be boarded for a day or a day and a half. Defendant told Mrs. Scott he was staying at the U-Smile Motel, just directly across the highway. He was wearing a very clean white shirt, a tie, gray slacks and a gray, darkish color straw hat with a band on it, but she could not identify State’s Exhibit No. 1 as that, hat.

On re-call, Detective Harlow testified that the distance from the Community Inn (Rawns’ tavern) to Linwood and Charlotte is 5.4 miles, and that it requires 18 minutes to drive that distance, observing all speed' limits and traffic signs.

F.B.I. agent J. Hale McMenamin saw defendant at the Bonfire Lounge a mile and' a half west of Denver, Colorado, and there placed him under arrest on June 20, 1962. Several photographs of the Bonfire Lounge were identified by McMenamin, and he described where a Nash Rambler car which defendant was driving was located in relation to the Lounge. He did not state for what charge he arrested defendant.

Defendant was charged in usual form with Murder in the First Degree, and by Instruction No. 3 the court instructed the jury concerning the conspiracy of defendant to commit the robbery with others and then the fact of the homicide was submitted and the jury was required to find that the-killing was done “in pursuance and execution of said robbery.” Thus the case was. submitted upon the felony-murder doctrine under Section 559.010, RSMo 1959, V.AM.S., which section is as follows:

“Every murder which shall be committed by means of poison, or lying in wait, or by any other kind of willful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or mayhem, shall be deemed murder in the first degree.”

In State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 343, the court said:

“It is further established that in the absence of other evidence from which the jury can infer the elements, deliberation and premeditation, these and other constituent elements of murder in the first degree can be inferred from proof that the homicide was committed in the perpetration or attempted perpetration of robbery. In the case of State v. Bradley, supra, 234 S.W.2d 556, 558(1) the court said: ‘* * * the proof that the homicide was committed in the perpetration of robbery was tantamount to proof of the constituent elements of the crime of murder in the first degree.’ And see State v. Cole, 354 Mo. 181, 188 S.W.2d 43, 189 S.W.2d 541; State v. Meadows, supra [330 Mo. 1020], 51 S.W.2d 1033, 1037(11) ; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 308(4).”

Defendant contends that under the facts .and circumstances of this case there can be no application of the felony-murder doctrine because there was no causal connection established between the robbery and the homicide; that the state failed to show that the homicide of Wilber was committed while defendant was still in the perpetration of this robbery. He says that, at the most, what the state did show was the possibility that the homicide of Wilber was the result of the frivolous shooting incident that took place at Linwood and Charlotte and at Thirty-Fourth and Campbell.

The matter of the conclusions to be drawn from these events which occurred subsequent to the robbery was for the jury, and the jury was justified in placing a different construction upon the facts than those suggested by defendant. “Escape with the loot was within the res gestae of the robbery; indeed, it was an ingredient of the crime.” State v. King, 342 Mo. 1067, 119 S.W.2d 322, 326. In State v. Messino, 325 Mo. 743, 30 S.W.2d 750, 759 [13], the court quoted from State v. Brown, 7 Or. 186, 209: “ ‘The act of taking and carrying away * * * commenced when the seizure was made * * * and continued until they [the robbers] had unmolested dominion over the property which they had taken. When they first acquired that control, the robbery was ended and not before.’ ” So -far as this record is concerned, defendant contends that the robbers had unmolested dominion over the property taken; the robbery had come to rest; and the loot had been divided because only $179 of the $235 taken was found in the car.

This contention is answered by the somewhat analogous case of State v. Hershon, 329 Mo. 469, 45 S.W.2d 60. There defendant and two others, armed with revolvers and automatic pistols, robbed a drug store at Twenty-Fifth and Brooklyn streets in Kansas City at about 9:00 or 9:30 o’clock at night. About 9:45 P.M., three officers on tour of duty were driving east on Thirty-First across Jackson Avenue and observed an automobile standing on the east side of Jackson Avenue headed north. The police, intending to investigate the car, backed up and drove into Jackson Avenue, and the other car drove away. The police pursued it,' ordered the driver to stop, and while the two cars were rolling about one mile per hour two of the officers jumped out and went to the other car, one toward the door and the other to the rear. At that moment two shots were fired from the pursued car toward officer Dingman, which shots hit him and from which he died. The defendant urged that the court erred in giving Instruction 1 (submitting the felony-murder doctrine) because it did not require a finding that any crime had been committed by the conspirators, and that the shooting was the direct, natural, and proximate result of the conspiracy. The court discussed State v. Nasello, 325 Mo. 442, 30 S.W.2d 132, and State v. Messino, 325 Mo. 743, 30 S.W.2d 750, two companion cases involving similar facts, and then said, 45 S.W.2d loc. cit. 68:

“In the instant case, facts and circumstances sustain the inference that defendant and his companions agreed together to rob and thereafter to escape by force of arms. And even if their act in stopping their car on Jackson avenue indicated that the three robbers believed that their original agreement had been consummated, the facts and circumstances of the chase and of its tragic ending warrant the inference that in their flight from the police they renewed their agreement to shoot their way to liberty." (Our emphasis.)

In People v. Kendrick, 56 Cal.2d 71, 14 Cal.Rptr. 13, 363 P.2d 13, defendant argued that the court improperly instructed the jury that “ 'murder which is committed in the perpetration * * * (of) robbery * * * is murder of the first degree * * *> ”, because the “ ‘homicide was too distant in time and space’ ” to classify it as having “ ‘occurred during the perpetration of a robbery.’ ” The court said, 363 P.2d loc. cit. 23:

“Here it appears that the homicide occurred some 48 minutes after the manager of the market was first accosted by defendant as he started to leave the premises. However this period of time must be considered in relation to the evidence that upon getting into his car after the robbery, defendant placed his .32 automatic gun on the seat beside him, then sped away at 70 to 75 miles per hour, and when stopped by Officer Duvall, defendant put a shell into his gun and believing that the officer was intending to arrest him for the robbery, defendant shot Duvall. Accordingly, the homicide could properly be viewed as committed by defendant in an endeavor to effect an escape. ‘Robbery, unlike burglary, is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape * * * with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property. Without revolvers to terrify, or, if occasion requires, to kill any person who attempts to apprehend [him] at the time of or immediately upon gaining possession of said property, [the] plan would be childlike. The defense of felonious possession which is challenged immediately upon the forcible taking is a part of the plan of robbery, or, as the books express it, -it is res gestae of the crime.’ (Citing cases.) The homicide, committed as it was while defendant was in hot flight with the stolen property and in the belief that the officer was about to arrest him for the robbery, falls well within this rule.”

See also the case of People v. Ketchel, 59 Cal.2d 503, 30 Cal.Rptr. 538, 381 P.2d 394, 404.

In State v. Glover, 330 Mo. 709, 50 S.W.2d 1049, 1053, 87 A.L.R. 400, it is said:

“ ‘The res gestae may therefore be defined as those circumstances which are the undesigned incidents of a particular litigated act, which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. * * * Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary, in this sense, that they are part of’ the immediate preparations for, or emanations of such act, and are not produced by the calculated policy of the actors.’ ”

See also annotations of cases involving the felony-murder doctrine and the application of the principle of continuous acts (similar to the res gestae) leading from the felony to the subsequent homicide in 22 A.L.R. 850 and 108 A.L.R. 847.

Under the evidence and the legitimate inferences to be drawn therefrom in the instant case, and within the rules announced in the above citations, the jury could reasonably find that the defendant with an accomplice perpetrated the armed robbery of Rawns’ tavern at Ninth and Brighton somewhere near 1:00 A.M., June 8, 1962. He was positively identified by the Rawns as one of the robbers. It would then have taken him some eighteen minutes to reach the intersection of Linwood and Charlotte. During the same period of time Willsey and his companions arrived at the same intersection from downtown Kansas City. Although it does not appear that the robbers were pursued, it could be inferred by the jury from the fact that defendant and Charlotte appeared alone in the white Ford Galaxie (Lamphere being hidden on the rear floorboard of the car until his apprehension) that they were employing a deception to avoid detection by any pursuers. Defendant at all times had his loaded revolver. In other words, the robbers were still in hot flight. People v. Kendrick, supra. This flight continued up to the time of the shooting of Special Officer Wilber, who commanded defendant to halt, and thereafter when defendant fled on foot. The homicide and the pursuit by Wilber were not the result of the frivolous shooting at Linwood and Charlotte. Indeed, it could be inferred at that point that defendant was trying to throw off Willsey and his companions believing them to be persons by whom or through whom he would be apprehended. If, by reason of the time lapse and distance away from the scene of the robbery, and a division of the loot ($179 of the $235 taken from the Rawns was found), the robbery had come to rest, as contended by defendant, the jury could reasonably find that defendant and his accomplices, still being together, renewed their purpose to flee and to shoot their way to freedom with the loot, as the evidence shows. State v. Hershon, supra.

A short time after the shootings at Will-sey and his companions, the jury could find that defendant, in the white Ford Galaxie, was chased into the alley by George Wilber where the homicide occurred. Defendant was seen by Airman Finch walking along and across Thirty-Sixth Street near the scene of the crime with a revolver in his hand, and the jury could find that he was still in flight from the point where Officers Deaner and Pinkston stopped the white Ford on Forest Street. Defendant’s companions were arrested at that time, but defendant fled further to Denver, Colorado, where he was arrested by the F.B.I. and returned to Kansas City by Officer Harlow. While the revolver was not found, the testimony of ballistics expert Myers was that the one slug taken from the target practice tree stump (at which defendant, Charlotte Martin and Lamphere had fired) at Coolidge, Kansas, was fired from the same gun as those found by deceased’s body and in the door of the Willsey automobile. From all of this evidence, the state made a sub-missible case of first degree murder under the felony-murder doctrine. The court did not err in submitting that theory to the jury in Instruction No. 3. The assignments of error [Points I and 11(A) and (B)] that the state did not make a submissible case, and that the felony-murder doctrine is not applicable under the evidence, and that the court erred in admitting proof of the robbery (claimed by defendant to be a separate and distinct offense) are ruled against defendant.

Under Point III, defendant claims that the trial court committed prejudicial error in allowing each of the four occupants of the 1956 Chevrolet to describe the shooting incident. The cited case, State v. Griffin, Mo., 336 S.W.2d 364, is not in point. That was not a felony-murder case and there it was held that reversible error was committed in allowing proof of disturbances of peace, assaults, batteries, robbery by means of a dangerous and deadly weapon and other offenses prior to the homicide for which defendant was on trial, all of which had no tendency to identify defendant as a participant in the homicide and to refute his alibi. In the instant case, if the testimony of these four witnesses was cumulative, allowing the same was within the sound discretion of the trial court. State v. Tompkins, Mo., 277 S.W.2d 587, 591 [10-12]; State v. Harris, 334 Mo. 38, 64 S.W.2d 256, 258 [4-5], We discern no abuse of such discretion. This assignment is overruled.

Instruction No. 2 defines for the jury “Murder in the First Degree” and instructs the jury that every homicide, the killing of a human being, which shall be committed in the perpetration of a robbery shall be deemed “Murder in the First Degree.” Instruction No. 3 instructs the jury as to conspiracy to commit robbery and that if in carrying out such design a human life is taken by one of the conspirators, then each of the others is responsible for the killing. Then the jury is required to find that defendant and others had an agreement or understanding to aid and assist each other in the commission of a robbery, and while in pursuance and execution of said robbery deceased was killed while defendant was there present, aiding, abetting or assisting in the commission of robbery, then the jury will find defendant guilty of Murder in the First Degree. Instruction No. 4 properly defined robbery and stated further “that said Robbery shall continue until such time as the participant or participants have unmolested dominion over the property taken from said other person.”

Defendant does not challenge the form of these instructions, but does, by Point IV, claim that the jury was thereby instructed not only on matters which were improperly admitted into evidence, but concerning which there is absolutely no evidence to support. He agrees that the record contains evidence of a robbery, but does not concede that the record sustains the submission that the robbery had not come to rest. This contention is answered by the discussion above concerning the submis-sibility of the state’s case. By reason of the evidence that one of the participants in the robbery was concealed in the white Ford, that the participants were still together, and that the defendant had a ready and loaded revolver, the jury could find that these conspirators were still in flight and had not completed their dominion over the property. People v. Kendrick, supra. Or the jury could find, as defendant contends, that the conspirators believed their crime had come to rest, and if so, then it could further find that they renewed their purpose to flee and shoot their way to freedom. State v. Her-shon, supra. These instructions are sup: ported by the evidence and reasonable inferences deducible therefrom. Point IV is ruled against defendant.

Under Point V defendant claims error in the trial court’s giving of Instruction No. 10, and in refusing defendant’s offered Instruction No. 13, both on the subject of circumstantial evidence. These instructions are as follows:

“INSTRUCTION NO. TEN
“The Court instructs the jury that direct evidence is that evidence which is of a nature which, if believed, proves the existence of the fact in issue without interference (inference?) or presumption and that circumstantial evidence is that evidence which is of a nature which does not directly prove the existence of a fact in issue, but which gives rise to a logical inference that such fact does exist.”
“INSTRUCTION NO. THIRTEEN
“The Court instructs the jury that the evidence in this case is mostly circumstantial, that before you can render a verdict of guilty against the defendant on such evidence, you must be satisfied beyond a reasonable doubt that when all the circumstances are considered together that they are absolutely inconsistent with any reasonable theory of innocence and consistent with the theory of defendant’s guilt.
“The Court further instructs you that circumstantial evidence should always be cautiously considered and weighed and that unless you are thoroughly satisfied of the guilt of the defendant beyond a reasonable doubt you should return a verdict of not guilty.”

It is apparent that this case consists of both direct and circumstantial evidence. It is true that there is no direct evidence, as defendant states, that he was in the alley and that he pulled the trigger of the gun that killed George Wilber. There is, nevertheless, sufficient circumstantial evidence to place defendant at the scene of the homicide and to tie him to the act of shooting Wilber. In this situation, the giving by the trial court of Instruction No. 10 was not error. The definitions of direct and circumstantial evidence in Instruction No. 10 follow those in State v. Cox, Mo., 352 S.W.2d 665, 670 [2, 3]. The refusal of the trial court to give Instruction No. 13 was not error. “Error cannot be predicated upon a failure to give an instruction on circumstantial evidence unless evidence of that character is solely relied upon for conviction.” State v. Cox, supra, loc. cit. 352 S.W.2d 670 [4], and cases there cited. Even if this were a solely circumstantial evidence case, the latter paragraph of Instruction No. 13 is improper. In State v. Letz, 294 Mo. 333, 242 S.W. 681, 684 [4], the court said, “Instruction B advised the jury that circumstantial evidence should always be cautiously considered. This court has condemned instructions of this character, the law making no distinction between direct and circumstantial evidence. (Citing cases.) Instructions should not be given which have a tendency to minimize the effect of circumstantial evidence and prevent the jury from giving it proper consideration.” Point V is ruled against defendant.

Under the last point, Point VI, defendant claims that error was committed in the admission of the testimony of F.B.I. agent J. Hale McMenamin concerning his arrest of defendant in Denver, Colorado,, and the details thereof, because, (1) “His presence and testimony was calculated to1 be and offered for the sole purpose of inflaming and prejudicing the jury against the Defendant;” (2) “The details of the arrest did not tend to prove any essential element of the crime charged, did not concern a material factual issue, and most certainly inflamed and prejudiced the jury;” and (3) “The admission into evidence of the details of another crime is clearly prejudicial error.” The evidence shows that defendant was in Kansas City with his accomplices prior to the robbery and murder. He fled, gun in hand, when the white Ford in which he was riding was stopped by the police at 3510 Forest, leaving his accomplices to be arrested. Defendant was not seen again until he was arrested by Mc-Menamin in Denver, Colorado, twelve days later. Evidence of defendant’s flight from the scenes of his crimes is admissible. State v. Harris, Mo.App., 325 S.W.2d 352, 358 [14-16], We find no allusion to “details of another crime” in McMenamin’s testimony. He merely gave the details of his arrest of defendant, in which we find no prejudicial error. The defendant’s last point is overruled.

We have examined the record concerning the matters contained in Supreme Court Rules 28.02 and 28.08, V.A.M.R. and we find no error.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

The foregoing opinion by PRITCHARD). C, is adopted as the opinion of the Court.

All of the Judges concur.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Johnny William HICKS, Appellant.
    No. 50166.
    Supremo Court of Missouri, Division No. 2.
    March 9, 1964.

      Johnny William Hicks, pro se.
    Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Judge.

This appeal is one from an order denying a motion to vacate a judgment and sentence, filed pursuant to Criminal Rule 27.26, V.A.M.R. Defendant is confined in the penitentiary. The sentence was one for two years imposed on June 15, 1962, for driving a motor vehicle while intoxicated. See Sections 564.440 and 564.460 RSMo 1959, V.A.M.S. (to which revision all statutory citations will refer unless otherwise stated). The judgment and sentence was entered upon a plea of guilty, and the record shows that the Court interrogated the defendant, explained the charge, inquired as to his education, and further explained that he had the right to counsel whether he had “money to employ one or not.” Defendant expressly waived his right to counsel and entered a plea of guilty; thereupon judgment and sentence of “Two (2) years, from the 15th day of June, 1962” was entered, with six days’ credit for jail time, and defendant was presumably taken to the penitentiary.

The following facts have been developed from certified copies of records filed here by defendant, and from his pro se brief. On October 23, 1961, he entered a plea of guilty in the Circuit Court of Wright County to a “bogus check” charge. At that time sentence was deferred. On February 1, 1962, he was sentenced to a term of two years “in the Department of Corrections,” but it was ordered that the punishment was suspended until the further order of the Court and upon conditions then imposed, including supervision by the State Department of Probation and Parole. On July 5, 1962, that Court, obviously having learned of the Greene County sentence, set aside its order suspending the sentence imposed, and ordered the Clerk to forward certified copies of its record and commitment to the Department of Corrections at Jefferson City, the defendant being then in its custody.

On December 27, 1962, defendant filed his present motion to vacate in the Greene County Circuit Court, by leave and as a poor person. The Court overruled that motion on the ground that, “from the records and documents filed,” the defendant was entitled to no relief. See Rule 27.26. From that order defendant has, by a rather devious course, come here on appeal; he has filed two notices of appeal, both out of time, but the last one by special order of this Court. Neither notice is in an approved form, but under these circumstances we accept the totality of the attempt as constituting a sufficient appeal.

The motion to vacate sets out certain records and files verbatim. In essence, it alleges: that the Greene County sentence was stated to begin on June 15, 1962, and that the Court was aware that defendant was on parole and under the supervision of the Board of Probation and Parole; that he pleaded guilty because the sentence was to begin on June 15, 1962, and that the Court indicated that he didn’t “care about” the other sentence; that he was transferred to prison and that on or about August 28, 1962, the prison authorities received the papers showing his (prior) Wright County sentence, and notified him that his Greene County sentence would be deferred until the expiration of the Wright County sentence. He claims that the Greene County Judgment and Sentence was illegal and void in that it fixed June 15, 1962, as its date of inception; this, for the reason that it supposedly violated § 222.020, and that the Court was required to know of his prior sentence. For convenience we quote here the applicable parts of § 222.020, as follows : “ * * * and if any convict commits any crime in an institution of the department of corrections, or in any county of this state while under sentence, the court having jurisdiction of criminal offenses in the county shall have jurisdiction of the offense, and the convict may be charged, tried and convicted in like manner as other persons; and in case of conviction, the sentence of the convict shall not commence to run until the expiration of the .sentence under which he is held.” Defendant prayed his discharge, upon the theory that the Greene County judgment was void. In his brief he now claims also that he has served his time on the sentence from Wright County. _

The brief of defendant is somewhat difficult to follow; it also contains certain contentions which are not strictly within the bounds of the motion to vacate. However, in so far as the claims are discernible and shown of record, we prefer to consider them now. Some wholly unsupported statements of supposed facts will be disregarded.

-It is suggested that the information failed to state an offense, (a) because it did not allege that defendant was driving recklessly or endangering the lives of others; and (b) because it was not supported by witnesses or based on actual knowledge. There is no merit whatever in these contentions. Section 564.440 states the essentials of this charge, namely, (1) the operating of a motor vehicle, and (2) while in an intoxicated condition. Both elements were specifically alleged in the information. The information was sworn to by the Prosecuting Attorney “according to his best information and belief,” which has been held to be sufficient. In State v. Stewart, 274 Mo. 649, 204 S.W. 10, loc. cit. 12, the Court said: “The verification of the information by the prosecuting attorney is alleged to be insufficient. In substance, it states that the prosecuting attorney upon his oath says that the facts stated in the information are true according to his best information and belief. This is in compliance with the statute, section 5057, R.S. Mo. 1909, and is not subject to valid objection. If an information is attested by a private person, it is necessary for the oath attached to be made upon actual knowledge, such as-would authorize the affiant to testify as a witness. Made by the prosecuting attorney, however, it may be based upon such information as he may feel warranted in believing and relying upon.”

Defendant says further that his imprisonment is unlawful because the “commitment cannot be seen from the records.” We do not understand the contention. If he means that no other judgment and sentence is before us except that of Greene County, we note that Respondent was permitted, by order of Court, to file and did file here certified copies of the records of the Circuit Court of Wright County as we have described them. All the judgment records are here and no “commitment” papers are necessary.

The principal argument made is that the Greene County judgment is void because it illegally fixed June 15, 1962, as the date for the inception of the sentence, thus being contra to § 222.020, quoted above; and, continuing, that defendant has served his other sentence (which we do not decide) and should be discharged forthwith. It is also urged that, since defendant had begun his Greene County sentence, the prison authorities could not set it aside “temporarily” and (presumably) start it over again after service of the Wright County sentence. This insistence, which is in effect that the Greene County sentence should have been permitted to run continuously, is wholly inconsistent with defendant’s primary argument that it was and is void. However, the complete answer to all of this is that § 222.020 is controlling, and where a subsequent crime is committed by one under sentence, that statute requires that the original sentence be served and completed first. State v. Campbell, Mo., 307 S.W.2d 486, cert. denied 356 U.S. 922, 78 S.Ct. 708, 2 L.Ed.2d 718. It was there held that the trial court had no power to order the second sentence to run concurrently with the first and that such a provision of the sentence and judgment was mere surplusage. In that opinion it was also held that Section 222.020 applied to a person on parole. See also: Herring v. Scott, Banc, Mo., 142 S.W.2d 670; Frazier v. Whitecotton, Mo., 188 S.W.2d 663; and Ex Parte Green, Banc, 322 Mo. 857, 17 S.W.2d 939. The statute not only fixes unalterably the order of serving the sentences, but it makes them consecutive, and no provision of a judgment may change this. The provision in the Greene County judgment fixing June 15, 1962, as the date of the beginning of that term, was mere surplusage and will be disregarded. That, however, does not affect the remainder of the judgment and sentence, and it should be served as provided by the statute. The unsupported allegation that the Court was “aware that the movant was on a parole * * * ” is immaterial, even if it were true. And, on that point, the only showing of record is that the Prosecuting Attorney stated to the Court: “Your Honor, he has one prior felony, a check charge.” This remark contains no reference whatever to any parole or probation.

Defendant insists that § 222.020 is mot applicable to “a person on parole.” Such a contention flies in the very teeth of the statute, which applies to all persons “under sentence” who commit another crime. This man was certainly under sentence. And the point has been expressly ruled in State v. Campbell and Herring v. Scott, supra. The case of Anthony v. Kaiser, 350 Mo. 748, 169 S.W.2d 47, merely held (in so far as we are now interested) that the predecessor of § 222.020, as it then stood, was not applicable to a person who had first been sentenced to the Intermediate Reformatory, paroled, and later sentenced to the penitentiary. It was thus held that the statute did not make the later sentence to the penitentiary consecutive with the first. The statute has since been amended. It is clearly applicable both to persons on parole and on probation.

Finally, defendant asserts that he has not been given credit on the Wright County sentence for the “period served on parole” as provided in § 549.275 (Laws 1957, p. 380, § 20). When we examine Chap. 549 of our statutes on “Probation, Pardons and Paroles,” we find distinctions between “Parole” and “Probation.” These distinctions begin with the definitions contained in § 549.201 (being § 549.058 of Laws 1963); “parole,” as defined, means the release of a prisoner by the State Board of Probation and Parole prior to the expiration of his term, whereas probation is granted by the Court by releasing a convicted defendant, without imprisonment, subject to conditions and to the supervision of a probation service. In certain instances the statutes refer to judicial "paroles, but these provisions are evidently included in order to permit the parole of persons convicted of misdemeanors or sentenced to jail on graded felonies. The general distinctions between probation and parole are maintained. By Section 549.190 the courts are specifically authorized to place on probation any defendant eligible for judicial parole by suspending the execution of sentence (as here). The “credit” section now in question, 549.275, is preceded by three sections which deal exclusively with paroles by the Board of persons confined in correctional institutions, thus emphasizing the fact that the phrase (in § 549.275) “The period served on parole” actually means parole as defined in § 549.201 (now § 549 - 058), i. e., the release of a prisoner “by the state board of probation and parole prior to the expiration of his term * * *” We hold that the credit so provided does not apply to one who has been sentenced with an immediate suspension of the execution of the sentence, as here. This was specifically a probation as defined in § 549.201. These definitions have been readopted in the 1963 Laws, as already indicated. If'the legislature wishes to include periods of time spent on probation in allowing credit on service of the sentence, § 549.275 should be amended. The contention is denied.

Defendant complains in some rather vague respects concerning the computations of time made by the prison officials. It is not our business to compute his time. The prison officials will be guided by their regulations and by such principles as we lay down for them, as here. And there was no impropriety, under these circumstances, in deferring the Greene County sentence after receipt of the judgment and commitment from Wright County. Certainly, defendant is not entitled to his release because he has served one, or either one, of the consecutive sentences.

The present motion constitutes a collateral attack on the judgment of the Greene County Circuit Court. We find the judgment valid. The present order and judgment of that court overruling defendant’s motion to vacate is affirmed.

All of the Judges concur.