author: MAUGHMER, Commissioner.

text:
    KAP-PEL FABRICS, INC., Appellant, v. R. B. JONES & SONS, INC., and Edward L. Hoffman, Respondents.
    No. 24353.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.

      George M. Winger, Thomas I. Gill, Kansas City, Smith, Schwegler & Swartz-man, Kansas City, of counsel, for appellant.
    William H. Sanders, Dean F. Arnold, David C. Trowbridge, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for respondents.
   MAUGHMER, Commissioner.

This is a damage suit against an insurance brokerage corporation and its agent based upon an alleged “breach of agreement” and negligence in the procurement of an automobile liability insurance policy. At the close of plaintiff’s evidence the court directed a verdict and entered judgment for each defendant. Plaintiff has appealed.

The plaintiff, Kap-Pel Fabrics, Inc., is a corporation engaged in the wholesale dry goods business. The defendant R. B. Jones & Sons, Inc., is a corporation engaged in the “insurance brokerage and agency” business. The defendant Edward L. Hoffman is an agent and employee of Jones. All parties were located, resided and did business in Kansas City, Missouri.

Mr. Samuel Kaplan has been president of Kap-Pel Fabrics since it was organized under that name in about 1947. He testified that he did most of the buying and selling and was out of the office much of the time. He said his associate, Mr. Samuel Peltzie, handled the day to day operation and “the purchasing of insurance coverage”, although the bookkeeper, Dorothy Stepp, “usually took care of the details”.

The plaintiff company in the conduct of its business carried numerous kinds of insurance, including workmen’s compensation, fire and extended coverage, blanket position bond, performance bond, automobile liability on an Oldsmobile, on a Chrysler, and a policy on nonowned, hired cars. Mr. Kaplan estimated they had “somewhere between five and eight policies”. Mr. Peltzie died during the year 1956, and at that time plaintiff had insurance policies with or through the following named insurance agencies or brokers: the defendant Jones, Atlas-Rogovein, T. H. Mas-tin Company, Altman Brothers, Minkin Agency and Koenigsdorf Agency. After the death of Mr. Peltzie, most of the policies on renewal dates were taken out with defendant Hoffman and through the defendant Jones Agency. Mr. Kaplan estimated that: “By ’60 or ’61 he was handling at least 90 percent of all of our insurance”.

Apparently upon occasions when some of the plaintiff’s officers were away from Kansas City, particularly in New York City, they rented automobiles for use temporarily in the company business. To cover company liability on these rented vehicles the plaintiff had purchased through the T. H. Mastin Agency, as “nonowned, hired car coverage policy” for an annual premium of approximately $50. Mastin’s last policy of this type expired January 3, 1957. This business was then transferred to defendant Hoffman, agent for Jones, who procured and had issued an exactly similar or comparable policy described as “non-owned, hired car coverage”. This policy was written for one year from January 3, 1957 to January 3, 1958. It was twice renewed for a period of one year. Mr. Kaplan made these statements regarding this particular policy, and its transfer from Mastin to Jones. He said he gave the Mastin policy to Dorothy Stepp, office manager, and said: “Here’s a policy that is lapsing and we want to give it to — we want to give this coverage to Ed Hoffman”. “I told Ed Hoffman * * *, we want to cover Kap-Pel Fabrics from any chance of liability on a truck that helonged to Joe Howard”'. He said Hoffman told him “There wasn’t anything that would keep us from obtaining it” (referring to liability coverage on Howard’s truck) and “indicated we would be covered”. He said: “I told Ed Hoffman — that is, I told Ed Hoffman what we were attempting to accomplish with this policy, we wanted to cover Kap-Pel Fabrics from any liability on a truck that belonged to Joe Howard, who was employed by us, but owned his own truck”. Kaplan admitted that both the Mastin and Jones policies which we have just referred to, each excluded from coverage “commercial vehicles owned by employees” or hired commercial vehicles that were used more than occasionally, and that these exclusions were printed in plain type on the policies. He said he did not examine or read the Jones policy or either of the renewals and if he had read it, it “would not have been issued”. Mr. Kap-lan admitted that Hoffman was “given the Mastin policy” when it expired. He was asked if Hoffman was to duplicate that policy. Kaplan answered: “Not necessarily”. “I always told Ed to cover us, adequately regardless of prior policies”, although he did not have “carte blanche authority”. Kaplan knew also that the annual premium on this policy was about $50, the same as on the Mastin policy which it replaced and which covered only nonowned, hired cars.

Defendants’ Exhibit 5 was received in evidence. It is a booklet which was prepared by defendant Hoffman and delivered to plaintiff company. It contains Hoffman’s recommendations as to various insurance coverages for plaintiff company. On the back of the “nonowned, hired cars” item these notations appear: (1) “Recommend comprehensive coverage” and (2) “Replaced by comprehensive coverage”. The specific date of the recommendation was not proved. The replacement with comprehensive occurred after the Howard accident out of which this lawsuit arose and which we will now discuss.

Mr. Joe Howard began working as a truck driver delivering merchandise for plaintiff in the Kansas City area about 1951, and has been employed in such capacity ever since. This was a full time job. For several years prior to and including January 16, 1959, he made these deliveries in a truck owned by himself. On January 16, 1959, while engaged on company business, he was involved in an automobile accident. Plaintiff company was sued and settled the claim for $1500. It is this amount, plus $1,000 in attorneys’ fees and expenses, which it is claimed were reasonably incurred in that litigation, which plaintiff seeks to recover by this action. There is no dispute regarding the reasonableness of this claim except as to the amount of the attorneys’ fees.

In the early ’50s, Mr. Howard said the company carried liability insurance on his truck. He said he did not know when it stopped this practice. Howard testified he thought Kap-Pel had liability insurance on his truck at the time of the accident. Kap-lan testified that he “assumed” Howard had liability insurance at the time of the accident. In any event, neither had any such insurance at the time. It appears that for a time Howard had carried liability insurance but after being involved in an accident his insurance was canceled. He bought no liability coverage thereafter.

Gerald Zobel, treasurer of plaintiff company, testified that after the Howard accident, the defendant Hoffman came to the plaintiff’s office and after a discussion of the accident, said: “I will take care of it”. He said that on a later visit Hoffman first told them “We were not covered”.

On appeal plaintiff contends that it was error to sustain defendants’ motions for directed verdicts and enter judgments thereon because: 'first, it says there is submissible evidence that plaintiff entered into a contract with defendants which was breached, and, -second, a submissible case of negligence was established against both defendants for their failure to procure the insurance contracted for. Defendants assert the evidence fails to establish any valid contract to secure liability insurance on the Howard truck, fails to show defendants were guilty of negligence, contributing to plaintiff’s damages, and shows affirmatively that plaintiff kept the insurance policy which was submitted to it for more than two years and beyond two renewals, and is therefore estopped to assert it was not the contract purchased, and was guilty of contributory negligence in failing to complain earlier.

There are only two grounds upon which the directed verdicts properly could have been granted: (1) if there was no substantial evidence of the contract to procure, or (2) if plaintiff’s conduct constitutes, as a matter of law, estoppel, waiver or contributory negligence, so as to bar recovery.

In ruling on a defendant’s motion for directed verdict,- the court must accept as true every fact and circumstance which plaintiff’s evidence tends to prove; plaintiff is entitled to the benefit of every inference of fact which may reasonably be drawn therefrom; the evidence must be considered in the light most favorable to the plaintiff, and such motion can be sustained only when the facts in evidence and the legitimate inferences to be drawn therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ. Zachary v. Kroger, Inc., Mo.App., 332 S.W.2d 471, 473. If, therefore, we accept as completely true everything testified to by Kaplan and treasurer Zobel, we must conclude that Kaplan asked Hoffman, the agent of Jones, to procure liability insurance covering plaintiff on Howard’s truck and Hcffman agreed to procure such insurance. This is so, even though there is no proof as to contemplated amount of coverage, the kind of truck Howard owned, and no written application was ever made. Neither Hoffman nor Jones procured any coverage on the Howard truck and plaintiff suffered a liability loss. Does this evidence make a submissible case on the contract feature? We believe it does.

It is generally true that a broker or agent who undertakes to procure insurance for another and fails or neglects to do so is liable for damages resulting therefrom.

“It may be laid down as a general rule that a broker or agent who, with a view to compensation for his services, undertakes to procure insurance for another, and, unjustifiably and through his fault or neglect, fails to do so, will be held liable for any damage resulting therefrom. The agent or broker is liable on the theory that he is the agent of the insured in negotiating for a policy and that he owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting the insurance”. 29 Am.Jur. Insurance, p. 561, Sec. 163.
“A broker or agent who has undertaken to procure insurance is liable to his principal for the damage suffered by reason of a want of valid insurance resulting from his negligence or other breach of duty in failing to secure or replace insurance in accordance with his undertaking; * * * 44 C.J.S. Insurance § 172, p. 861.
“An insurance agent is personally ha ble to an applicant in damages for a breach of his contract or agreement to procure insurance.
* * * * * *
“If a broker or agent of the insured neglects to procure insurance, or does not follow instructions, or if the policy is void or materially defective, through the agent’s fault, he is liable to his principal for any loss he may have sustained thereby”. Appleman, Insurance Law and Practice, Vol. 16, pars. 8831, 8841.

In Harris v. A. P. Nichols Inv. Co., Mo.App., 25 S.W.2d 484, plaintiff was a dealer in valuable linens and laces which he sold personally, direct from his automobile. Defendant was a corporation engaged in the insurance brokerage and agency business. Defendant’s agent and employee, after contact with another agency, told plaintiff that they could procure a policy insuring him against theft of the merchandise from his automobile for $20 per thousand. He told them to order such a policy in the amount of $2,000. A few days later and on June 15, 1922, he received a policy and paid a premium of $40 therefor. The policy did not cover theft from the car. Neither defendant nor plaintiff examined the policy. About October 5, 1922, less than four months later, plaintiff suffered a loss through theft from his automobile of merchandise valued in excess of $2,000. The court, sitting in a jury waived case, found the issues for plaintiff. This finding and judgment was affirmed on appeal and the court made these statements:

“ * * * it is apparent this is not an action by the plaintiff, as the insured, and a company upon its contract or policy of insurance, but one for a breach of an original undertaking on the part of the defendant as plaintiff’s agent to secure a definite kind of policy of theft insurance. In argument, defendant leans heavily for support on the contention that a failure of insured to read and familiarize himself with provisions of a policy of insurance is fatal to his recovery thereon, (citing numerous cases). We do not deem these cases in point or applicable to the matters here presented as they deal with questions between an insured and the insurer. Generally an insurance broker is the agent of the insured and not the insurer, (citing cases). Although there are exceptions, and each case must rest on its own facts, we conclude that the relationship which existed between plaintiff and defendant in the case at bar was that of principal and agent. Within the fiduciary capacity thus created, plaintiff was entitled to rely upon and believe that, pursuant to the duties assumed by such agent, and under his instructions, a policy of the kind desired was mailed to plaintiff and received by him. * * * We are of the opinion that an agent cannot avoid liability to his principal for an alleged failure on the part of such principal to determine, prior to the occurrence of a loss or damage (appearing as a direct result of nonperformance by such agent of his undertaking and instructions), whether such agent has consummated the act for which he was employed.
“Nor is there any basis for the assertion that plaintiff is estopped to contend defendant failed in this regard. It has been uniformly declared, where parties have equal means of knowledge, there is no estoppel in favor of either”.

In Zeff Distributing Co., Inc. v. Aetna Casualty and Surety Co., Inc. and Swade Insurance Co., Mo.Sup., 389 S.W.2d 789, 795, plaintiff requested his agent or broker, Swade Insurance Company, to procure theft insurance. A binder was issued by Aetna Insurance Company. Before the policy was issued, Aetna learned of a prior burglary and advised Swade it would not issue the policy or carry the risk beyond the 60 day binder period. Swade did not procure insurance elsewhere or notify plaintiff of Aetna’s refusal to insure. There was a loss. The trial court directed a verdict for Aetna, which the Supreme Court affirmed. The verdict of the jury for defendant Swade was reversed and a new trial ordered for an instruction error. The court said: “Our view is that plaintiff made a submissible jury case”. “Our conclusion is that plaintiffs evidence was sufficient to show failure of Swade to exercise reasonable skill, care and diligence in replacing the Aetna insurance”.

In Ursini v. Goldman, 118 Conn. 554, 173 A. 789, the plaintiff owned and operated a wholesale grocery store. Defendant was a licensed insurance broker and repeatedly solicited plaintiff to insure against burglary, but plaintiff did not do so. In August, 1928, the store was burglarized. On the following day plaintiff told defendant to obtain for him a $2,000 burglary policy and defendant agreed to do so. A casualty company issued a $2,000 burglary policy to plaintiff but it contained a provision avoiding the risk if the premises had been burglarized within a period of five years. A second burglary occurred in December, 1928, and the insurance company not being liable, plaintiff sued the broker. There was a verdict and judgment for plaintiff. On appeal the court held that an insurance broker is the agent of the insured in negotiating for an insurance policy and owes a duty to exercise proper skill, care and diligence and for failure to do so, is liable for any resulting loss. It was further specifically ruled that the principal may sue either for breach of contract or in tort for breach of duty. In that case the trial court charged the jury “that if the jury found that the plaintiff did neglect his duty in informing himself of the contents of the policy he would be precluded thereby from recovery”. This instruction or charge recognized, applied and submitted to the jury what we might describe as the commingled defense of estoppel, waiver and contributory negligence. It should be noted that there the policy on its face appeared to be what the insured wanted and believed he had purchased. It covered burglary and was for $2,000, the amount applied for. The departure was not patent, but rather a latent exclusion provision which was discoverable only after careful examination of the body of the policy.

The District Court of Appeal of Florida, Second District, in First Nat. Ins. Agency, Inc. v. Leesburg Transfer & Storage, Inc., 139 So.2d 476, 479, 480, had these two questions before it. The defendant broker, according to plaintiff, agreed to secure additional insurance on plaintiff’s building— specifically to double the amount from $17,-000 to $34,000. Defendant denied making the agreement, but the court in a jury waived case found for plaintiff. The alleged oral agreement took place in December, 1958. In July, 1959, “plaintiff received renewal certificates to reflect the annual renewal of its already existing insurance coverage of $17,000.” In November, 1959, the premises were completely demolished by fire. The trial court declined to permit defendant to plead or present the defense of estoppel and struck its pleading raising that defense. The appellate court, after first commenting that the issues were of first impression in Florida, remanded for new trial and said:

“However, the liability of a broker for damages resulting from a failure to provide insurance, having agreed so to do, is elsewhere almost universally recognized. The cause of action was given succinct expression in Gay v. Lavina State Bank, 1921, 61 Mont. 449, 202 P. 753, 755; 18 A.L.R. 1204.
⅜ ⅝ ⅝ ⅝ s{c
“The breach of the broker’s duty to procure insurance is indicated in the above quotation and has elsewhere been held to sound in negligence as well as in contract”.

On the defense of estoppel the court commented and ruled that where the breach of the alleged oral contract occurred eight months before the owner received renewal certificates showing there had been no increased coverage and four months before the loss and did nothing, the defense of estoppel was available to the defendant broker, and said:

“Under the facts of this case, a holding that the defense of estoppel does not lie would be tantamount to a green light for anyone who sustains a fire loss to pursue the enforcement of possibly non-existent insurance contracts”.

While the evidence in our case is not abundantly clear and some of the usual component parts of a contract (the amount of liability coverage for one) are not covered, we rule that the testimony of Mr. Kaplan and Mr. Zobel for plaintiff corporation was sufficient to take to the jury the question as to whether or not the contract was entered into. It was therefore error to direct a verdict unless the uncontroverted and conceded facts show that plaintiff is estopped, is contributorily negligent or has waived its rights under the contract, all as a matter of law, so as to preclude enforcement of the contract.

We are faced first of all with plaintiff’s assertion that estoppel, waiver and contributory negligence are affirmative defenses and unless affirmatively pleaded are waived. Sections 55.10 and 55.43, V.A.M.R. so state. The defendants did not in any respect affirmatively plead such a defense. The first ground of their motions for directed verdicts present it this way: “Plaintiff accepted without protest or rejection the policy issued and subsequently renewed”. At the trial, no testimony on behalf of defendant was adduced since a verdict was directed at the close of plaintiff’s case. The transcript contains no testimony from the defendant Hoffman, who was an active and ever present participant in most of the proceedings. Consideration of the cross-examination of Mr. Kaplan, on whose testimony plaintiff’s case must stand or fall, reveals that really only two factual questions were disputed or litigated during the trial, namely, (1) did Hoffman agree to procure liability insurance on Howard’s truck and (2) if he did, is plaintiff company, by its conduct, estopped to enforce such contract ?

We find the following in 31 C.J.S. Es-toppel § 153(3), pp. 754, 755:

“The failure to object to evidence of estoppel waives the objection that the estoppel was not specially pleaded. Further, where the facts showing estop-pel or waiver are in issue and are admissible for any purpose under the pleadings, estoppel is available as a defense without being specially pleaded, and evidence of estoppel is admissible without being pleaded in order to rebut evidence introduced by the opposite party. An estoppel or waiver need not be pleaded where it appears in the case made by the party against whom it is invoked. An estoppel against plaintiff is available to defendant, although not pleaded, where it is established by plaintiff’s evidence, * * ⅜ >>

In Woolfolk v. Jack Kennedy Chevrolet Company, Mo.App., 296 S.W.2d 511, 516, it was ruled that the defense of estoppel was available although not pleaded where the issue was contested during the trial. The ruling was in this language:

“There is no merit in the contention made in the motion that the defense relied upon by defendant was not affirmatively pleaded. The fact is that the issue was hotly contested — it was the chief issue that was tried and submitted. By our code of civil procedure when issues not embraced in or raised by pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been properly raised by the pleadings”.

We rule that the defense of estoppel is still available to defendants and must be considered in this case even though not specifically and affirmatively pleaded.

To justify a directed verdict on the basis of estoppel, a court must hold that there was an estoppel as a matter of law.

■ “Where the facts are undisputed and only one inference may be drawn therefrom, the question of estoppel is one of law, but otherwise it is one of fact”. 31 C.J.S. Estoppel § 163, p. 784.

An appellate court in Connecticut (Ursini v. Goldman, supra) where the insured kept his burglary policy for four months without discovering he was not covered because of an exception if his building had been burglarized within the preceding five years, ruled the question of estoppel under those facts was one of fact for the jury.

In First Natl. Ins. Agency, Inc. v. Leesburg, supra, where plaintiff in July received renewal notices indicating the contemplated doubling of the insurance had not taken place and took no action until after loss in the following November, the Florida court ruled estoppel to be a permissible and proper defense and remanded for a new trial on all issues.

The defendants rely most strongly on the case of Woolfolk v. Jack Kennedy Chevrolet Co., Mo.App., 296 S.W.2d 511. In that case plaintiff was employed as a “driver and owner of a taxicab”. Defendant was an automobile dealer. Plaintiff purchased an automobile from defendant. Appearing on the chattel mortgage given as part of the purchase price appeared the following: “Insurance payable to purchaser and mortgagee, covering $50.00 ded. $163.” It was undisputed that defendant agreed to purchase such insurance for plaintiff, but the insurance company, learning that the vehicle was to be used as a taxicab, declined to write coverage for both the owner and the mortgagee, and issued only single insurance coverage to Mercantile Trust Company, purchaser of the mortgage. Defendant refunded and plaintiff admitted receiving $1.60 in refund of premium. Defendant produced copy of a letter which he said he wrote to plaintiff, advising that only single coverage could be procured and reciting enclosure of the $1.60 premium refund. Plaintiff denied ever receiving such a letter. The daily report from the insurer was received by plaintiff three or four days after delivery of the car. It and the policy showed plainly insurance only to the Trust Company. Plaintiff said he did not read the daily report or the policy which was dated April 29, 1954, but put them away. On July 31, 1955, 15 months later, the automobile was demolished in a collision. The trial resulted in a jury verdict and judgment for plaintiff. On appeal it was held that the evidence was sufficient for submission of whether or not there was a contract. The appellate court, however, also ruled that' plaintiff “accepted the performance by defendant as a full compliance with, and discharge of, its obligation under the contract”. The court reasoned the matter this way:

“By plaintiff’s admission he received the daily report three or four days following delivery of the automobile. He was a literate individual. He had purchased automobiles and had been engaged in the taxi business prior to the instant transaction, and was, at least to a degree, possessed of business experience. Ample opportunity was afforded plaintiff to read the copy of the policy and the endorsements, and by so doing he would have become fully acquainted with the type of coverage that was in existence. He chose to do nothing after receiving the daily report for a period of approximately fifteen months. It cannot avail plaintiff to say, as he did, that T did not read any part of it (daily report) but put it in my box.’ It is well settled that one who can read and does not read is foreclosed by his own negligence. ‘The law affords to every one a reasonable protection against fraud in dealing, but it is not an indulgent guardian which can go to the romantic length of giving protection against the consequence of indolence,, folly or careless indifference to the ordinary and accessible means of information.’ Dickinson v. Bankers Life & Casualty Co., Mo.App., 283 S.W.2d 658, loc. cit. 663. See, also Edmund S. Mills Corp. v. Stinebaker, Mo.App., 67 S.W.2d 821, loc. cit. 822, and cases cited.”

Defendant has invited our attention to numerous cases where plaintiffs in their suits were impaled on the horns of estoppel. We shall list seven of those cases by name.

Edmund S. Mills Corp. v. Stinebaker, Mo.App., 67 S.W.2d 821. Here the maker of a promissory note was held estop-ped for failure to read the note he signed. In the other six cases (Zeilman v. Central Mut. Ins. Ass’n., 224 Mo.App. 145, 22 S.W.2d 88; Muller v. Mutual Benefit Health & Accident Ass’n., 228 Mo.App. 492, 68 S.W.2d 873; Steward v. Mutual Life Ins. Co. of Baltimore, Mo.App., 127 S.W.2d 22; Neuner et al. v. Gove, Mo.App., 133 S.W.2d 689; Evers v. Brotherhood of Railroad Trainmen, Mo.App., 172 S.W.2d 899 and Hartford Accident and Indemnity Co. v. Farmington Auction, Inc., Mo.App., 356 S.W.2d 512 suit was against the insurer; that is, against the insurance company, and not against the broker or agent. The broker in the procurement of insurance is the agent of the insured and therefore owes a greater duty to the insured than does an insurance company with whom he contracts. The insured must act promptly when dealing with the insurance company if he is to escape estoppel. The rule was stated by this court in Neuner v. Gove, Mo.App., 133 S.W.2d 689, 694:

“However, an application for insurance is merely an offer, which may be accepted or rejected by the company. The sending of a different policy than that applied for constitutes a counteroffer. The insured has a reasonable time to accept or reject the policy and if he keeps it a reasonable length of time, he is deemed to have accepted the policy or counteroffer. 32 C.J. pp. 1102, 1104, 1105, 1107. Where he keeps the policy an unreasonable length of time, he accepts it as a counter-offer, although he does not read it. Faith v. Home Life Ins. Co., 203 Mo.App. 196, 208 S.W. 124; Home Ins. Co. of New York v. Horrell, 206 Mo.App. 352, 227 S.W. 830. If he is unable to read it or to understand it, it is his duty to have someone else read it to him or have its terms explained to him and, he is not permitted to rely on any statements made by a soliciting agent, who has no authority to make contracts of insurance, concerning its provisions, (citing cases)”.

Plaintiff contends its obligation to examine the policy else be guilty of contributory negligence is less exacting when dealing with a broker than when contracting with an insurance company. We agree and believe this is primarily so because the broker or intermediary is the agent of the insured, whereas the insurance company is the other ultimate contracting party. We doubt if the broker occupies a true fiduciary relationship — he is hardly a trustee. We believe agency properly describes the relationship.

Plaintiff says the defendant in Woolfolk v. Jack Kennedy Chevrolet Company was an automobile dealer — not an insurance broker and (a) was not an expert on insurance as a broker is presumed to be and (b) does not occupy a fiduciary relationship as does the broker. In either case — in Woolfolk as in ours — the defendant was plaintiff’s agent and contracted (according to plaintiff’s evidence) to procure a certain insurance coverage. A person is not required to be so alert and watchful in examining a policy procured by his agent as where it was delivered direct by the insurance company. In this latter event, two contracting parties are dealing with each other at arms’ length and negligence or delay in examining the contract is less excusable than if it were procured by the insured’s own agent. In Woolfolk and in our case defendant was plaintiff’s agent and we believe there is little distinction to be made because one was an automobile dealer and one an insurance agent and broker.

In First Natl. Ins. Agency, Inc. v. Leesburg, supra, specifically involving an insurance broker, the Florida court approved estoppel as a defense and commented that a ruling to the effect that estoppel would not lie “ * * * would be tantamount to a green light for anyone who sustains a fire loss to pursue the enforcement of possibly non-existent insurance contracts”.

The rule requiring a person to inform himself as to his purchase is less exacting as to insured’s own representative and broker who has procured an insurance policy for him than as to a contract purchased direct. However, this does not mean that an insured can close his eyes and go on forever and act as an incompetent ward with the broker as his guaranteeing guardian.

In determining if a litigant’s neglect, delay or poor judgment results in harnessing him with the penalties of estop-pel or contributory negligence, courts and juries do and should consider his maturity, experience and knowledge regarding the realm of human behavior in which his unwise or unreasonable acts or failure to act arise. Less is expected of a child than of an adult. More is demanded of a knowledgeable person than of one unfamiliar with the subject matter or inexperienced therein. What about our plaintiff in the case before us? It is a business corporation and has been in existence for many years. For at least 20 years it has corporately used insurance and has bought insurance policies of numerous kinds from many different agencies. Mr. Peltzie took care of insurance matters until his death in 1956. If no one in the plaintiff corporation assumed this particular duty when Peltzie relinquished it, was this negligence on the part of the plaintiff corporation? President Kaplan was able to read and to understand insurance contracts, or at least the one involved in this litigation because he said he read it and understood it, but he did not do so until after the Howard accident. Neither he nor any other corporate officer or employee read it before the Howard accident even though the policy, counting the two renewals, was in their possession from January 3, 1957, until January 16, 1959, the date of the accident. If a corporate insured, with intelligent and knowledgeable officers and employees, is to be excused from reading its insurance policy and two renewals thereof for more than two years, then any insured ought to be excused forever from reading an insurance contract procured from a broker insofar as liability of the broker is concerned. In addition, Mr. Kaplan knew that the premium on this policy was almost exactly the same as on its predecessor which was bought from Mastín and which covered only non-owned and occasionally used automobiles. Mr. Kaplan said he “assumed” Howard carried liability, but neither he nor any other corporate person made an effort to find out. He thought this policy transferred from Mastin to Hoffman covered Howard, but neither he nor any other corporate person made an effort to find out. We do not believe that this corporate plaintiff can justly plead in avoidance of the pains and penalties of estoppel and contributory negligence, either lack of maturity, insufficient time or want of opportunity to examine the policy, general lack of education, inexperience in insurance matters, or that it affirmatively exercised reasonable care.

We have considered remanding this case for retrial and for submission of both the issues — contract and estoppel — to the jury. However, we believe that under the facts already developed (and which are not susceptible of change) the plaintiff is guilty of contributory negligence and is estopped to sue for breach of contract. In our opinion reasonable men could come to only this conclusion. This being so, the trial court did not err in directing a verdict for the defendants.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, C., is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: DEW, Special Commissioner.

license: Public Domain

text:
    Clifford Gary BUFFINGTON, Respondent, v. FAIRGROUND SALES COMPANY, a Corporation, Appellant.
    No. 24395.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.

      Joe Beavers, Larry Zahnd, Maryville, for appellant.
    Hull & Strong, Frank H. Strong, Mary-ville, for respondent.
   DEW, Special Commissioner.

Plaintiff sued to recover damages for breach of an alleged express warranty in the sale to him of 20 Hereford cows by the, defendant. The petition originally included as defendants Lawrence Merrigan, stockholder, and James Merrigan, stockholder, president and auctioneer, of the defendant corporation, and also copartners engaged in the trucking business at that corporation’s place of business. At the close of the testimony, the case was dismissed as to said copartners, leaving the Fairground Sales Company, a corporation, as the sole remaining defendant and which will be so treated and referred to as such in this opinion. Upon a trial to a jury, plaintiff recovered a verdict and judgment against the defendant for $4,000, from which defendant has appealed.

The petition alleged plaintiff’s attendance at a special cow sale advertised to be held on January 7, 1963; his purpose to acquire Hereford cows for breeding purposes limited to that breed; the representations made by the defendant’s auctioneer as to the breed of the cows, their age, and their being with calf, sired by a pure-bred Hereford bull; the failure of the cows delivered to plaintiff to conform to the identification records of those purchased, or to meet the other representations referred to, and the consequent damage sustained by plaintiff.

Defendant by its answer denied the accusations pleaded by the plaintiff and alleged that the cows purchased by the plaintiff were not owned by defendant, but by a third party who had conveyed them to it as a marketing agent, without any warranties or representations.

The pertinent evidence adduced by the plaintiff tended to prove that he was a stock farmer, 27 years of age, married and living on a rented farm near Colo, Iowa, near the farms of his parents and uncle. He had had six years experience as a farmer and presently was operating on a partnership plan by which his landlord furnished the farm and some livestock, and plaintiff was to furnish an equal number of livestock and perform the necessary work and labor required in such an arrangement. The landlord had a herd of Black Angus cattle. Plaintiff desired to acquire and to supply pure bred Hereford cows with which to build up a herd of that breed which are usually larger animals. He planned in the future, to cross the Hereford stock with Angus to produce a still better type of stock for breeding purposes. Having seen a newspaper advertisement of a special sale of cows to be conducted by defendant on January 7, 1963, at its place of business near Maryville, Missouri, he, accompanied by his father, uncle and brother, drove to the sale, some 200 miles distant. There were between 1600 and 1900 cows to be sold at the sale.

Further evidence of the plaintiff was to the effect that he and his party sat close to the auctioneer (James Merrigan, president of the defendant) who offered for sale the herd of cows then in the ring; that the auctioneer said they were pure bred Herefords, pregnant with their second or third calves, all sired by a pure bred Hereford bull; that he had known the cows in the West when they were heifers, and that they were too good to be put in a fattening yard. Plaintiff asked if he could buy less than all of the group and was told he could buy 20 head “gate cut”. Plaintiff said he believed and relied on the above representations made by the auctioneer and purchased 20 head for $200 each, which were then herded from the ring. Plaintiff’s father and uncle corroborated the plaintiff in the foregoing testimony regarding the sale.

Plaintiff testified further that he followed the cows he had purchased to a nearby pen and, upon inquiry, he was told that he could hire Merrigan Brothers to transport his cows by truck to plaintiff’s home near Colo, Iowa. He then arranged to do so. Thereupon plaintiff went to the office of defendant, gave his check for $4,000 for the cows, received a health certificate for them containing their tag numbers, their breed as Herefords and the designation of the defendant as the consignor and plaintiff as consignee in the sale. Returning to the truck driver, plaintiff repeatedly offered to assist him in loading the cows in the truck but his assistance was repeatedly denied. Thereupon the truck driver directed plaintiff to a restaurant on the highway .'where the plaintiff and party could get food and where, he said, he would meet them later with the truck and get directions to plaintiff’s farm in Iowa. About 5:00 or 5:30 p. m. the trucker arrived at the restaurant in his loaded truck and was told how to reach plaintiff’s farm. Plaintiff and party proceeded ahead and later, about 10:00 p. m., stopped again for coffee and sandwiches, arriving at plaintiff’s home about 11:30 p. m. There he learned that the trucker had arrived, unloaded into a corral the cows he had brought, and left. Plaintiff herded them that night into a pen and fed them hay.

Within a few days plaintiff noticed one of the cows was in heat and not with calf. He reported this by telephone to Lawrence Merrigan, who said he would consult the records and call back. He did not call back. Later three more were noticed to be in heat and not with calf. Two of the cows were sold because of cancerous eyes, for $279. One of them had had a calf. One cow delivered her calf, which had black body and white face. Plaintiff testified that a'Hereford cow bred to a Hereford bull, will produce a calf with a red body and white face whereas, if bred to a Black Angus bull, the calf will have a black body and a white face. Plaintiff again called and complained to Lawrence Mer-rigan of the developments and again the latter promised to examine his records and call back, which he failed to do.

There was proof that out of 20 cows received from the sale, only 16 had calves. The heifer calves were not kept as only two were Herefords. They were sold for $200 each. He had the cows bred later to an Angus bull and got 16 calves in 1964. Out of 17 of the cows tested by a veterinarian, it was found that the ear numbers did not correspond to the numbers on the health papers issued to the plaintiff. On a mouth test it was shown that out of 18 of the cows, four had no teeth at all, and were probably ten years old, and four had badly worn teeth, requiring the feeding of ground corn, rather than hay; two were probably five or six years old, one twelve and one ten, and the others eight or nine years of age. Plaintiff claims proof of damages in the amount of $4,950.

There was testimony that the cows purchased by plaintiff were delivered to the place of sale by one Ronald Emberton of Hamburg, Iowa, who was indebted to defendant in the sum of $19,997.12; that he had frequently shipped cattle to defendant for sale under other names as consignor and later corrected to show himself as such consignor. However, it was shown that after the sale on January 7, 1963, defendant issued a check payable to him for $21,277.23.

In short, the evidence adduced by plaintiff tended to show that the cows delivered to and received by the plaintiff from the sale did not conform to the representations of the defendant concerning the cows he had purchased and were, in fact, not the same cows purchased by him, and that they failed to serve the purpose for which he made the purchase.

In view of the disposition which must be made of the points here raised on appeal, it is sufficient to state that there was evidence on behalf of defendant that there were no guaranties or warranties made on the cows by the defendant’s auctioneer prior to the bidding at the sale.

Defendant’s first point of error is that the court erred in giving, at plaintiff’s request, Instruction No. 3, the same being inapplicable, misleading and confusing. Supreme Court Rule 70.01(b), V.A.M.R., adopting the Missouri Approved Instructions, (MAI) provides that if MAI contains an instruction which is applicable in the particular case, it shall be given to the exclusion of any other instruction on the same subject. The instruction must be marked to indicate the number of the form used, or whether it is a modified form or that no applicable instruction is contained in MAI. A violation of any such requirement is declared by the rule to be error,— its prejudicial effect to be judicially determined,

The rule provides further, among other things, that if MAI does not contain an applicable form of instruction, or contains one which must be modified so as to submit fairly the issue in point, such modification or other instruction used shall be “simple, brief, impartial, free from argument and shall not submit to the jury or require findings of detailed evidentiary facts”. In verdict-directing instructions, it is the purpose of MAI to hypothesize the ultimate issue, without evidentiary detail. Plaintiff’s Instruction No. 3 was marked “MAI — 25.03 Modified — By Plaintiff”, and was as follows:

“Your verdict must be for the plaintiff and against the defendant Fairground Sales Company if you believe:
“First, the defendant Fairground Sales Company sold twenty (20) cows to the plaintiff, and
“Second, the defendant Fairground Sales Company through its president, James Maurice Merrigan, before the cows were sold, made certain representations as to the cows, and
“Third, the plaintiff reasonably relied upon the representations of James Maurice Merrigan as being true, and
“Fourth, the cows delivered to the plaintiff were not in all respects as represented, and
“Fifth, as a direct result plaintiff was damaged”.

While defendant vigorously challenges the applicability of Instruction No. 3, whether the case be deemed one of implied or express warranty, or false representations or otherwise, it insists that the instruction is fatally insufficient and defective on any theory, because it wholly fails to submit the ultimate issue so as to inform the jury of the act or conduct of the defendant of which the plaintiff complains. It is urged that the submission merely of the words “certain representations” as the ultimate issue completely fails to instruct the jury as to what issues it is to determine.

If Instruction No. 3 is insufficient in such a vital respect, then regardless of other points of attack, it would be reversible error. It is not intended by Rule 70.01(b) or by the comments of the committee which formulated and submitted MAI that simplicity and brevity may be achieved at the sacrifice of inherent sufficiency. The forms in MAI contain parenthetical insertions illustrative of the appropriate deisgnation of the ultimate issue or issues without evidentiary detail. None would authorize the submission merely of “certain representations” as compliance with such requirement.

Other points of attack are made against Instruction No. 3. However, since a new trial of this cause will be required, full discussion of these additional matters is not necessary. Tested by the present record, it would be insufficient in several respects. If Instruction No. 3 is a modification of MAI 25.03, (based on breach of warranty), then it should have required the jury to believe (1) that the defendant knew or should have known by using ordinary care of the use for which plaintiff purchased the cows; (2) that the plaintiff reasonably relied upon defendant’s judgment as to the suitability (or fitness) of the cows for such use; and (3) that the cows were not fit (or suitable) for such use. If, on the other hand, the instruction is a modification of MAI 23.05 (based on fraudulent misrepresentations) it should have required the jury to believe (1) that the representations as to the cows were false; (2) that defendant knew the representations were false (or did not know whether they were true or false); and (3) that the representations were material.

Defendant’s Point 2 complains that plaintiff’s Instruction No. 4 was incorrect. It followed the prescribed Instruction 4.01 and was as follows:

“INSTRUCTION No. 4
(Carbon copy Marked MAI 4.01 — By Plaintiff)
“If you find the issues in favor of the plaintiff and against the defendant Fairgrounds Sales Company, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained as a direct result of the occurrence mentioned in the evidence”.

Defendant objects to the use of the word “occurrence” in the above instruction under the circumstances, although used in MAI 4.01. It is argued that the transaction comprised two or more alleged “occurrences” and that the instruction is thus insufficient and permitted recovery not properly submitted, and on any occurrence in evidence. We believe that if the jury were properly instructed under Instruction No. 3, ⅛ would not have been misled by Instruction No. 4, as submitted.

In Point -3, defendant maintains that the court erred in making a ruling in chambers respecting the proper measure of damages to be discussed in the final arguments. The ruling was made on the basis of the record in the case and the objection was preserved. Since in a retrial, the measure of damages must again be determined and upon the basis of the evidence adduced in that trial, and certain factual matters now in dispute pertaining to the damages sustained may therein be presented and will determine the proper measure of damages, we refrain from reviewing the court’s ruling in chambers under the present record.

Defendant’s fourth and last point of error is that “the verdict was so excessive as to show bias and prejudice on the part of the jury”. Having shown the necessity of reversing the judgment and remanding the cause for another reason, the determination of the amount of the verdict under the present record becomes academic. It would be decisive in a verdict for plaintiff in a retrial only if the evidence on the issue of damages were identical, a circumstance too speculative for our assumption. In Marusic v. Union Electric Company, Mo., 377 S.W.2d 454, where the plaintiff appealed from a verdict for defendant and it was determined on appeal that he had not made a submissible case, the Supreme Court declined to consider his further points regarding evidence pertaining to his alleged damages, or any other alleged errors not affecting the submissibility of the appellant’s case.

In Duncker v. St. Louis Public Service Company, Mo.App., 241 S.W.2d 64, the appellate court, having found reversible error in the instructions on the issue of negligence and burden of proof, refused to consider the adequacy or inadequacy of the verdict, saying (p. 71):

“In the event of a retrial and a verdict for plaintiff our present determination of the question of excessiveness would be decisive of the question of adequacy or inadequacy of the next verdict only if the evidence on the issue of damages at the two trials should be identical upon the prospect of which we will not now speculate.”

For like reasons we make no ruling on the alleged excessiveness of the verdict in the case at bar.

For the reasons stated the judgment should be reversed and the cause remanded. The Special Commissioner so recommends.

PER CURIAM.

The opinion of DEW, Special Commissioner, is adopted as the opinion of the court and the judgment is accordingly reversed and the cause remanded.

All concur.


author: HOWARD, Judge.

text:
    Virgil O. SHIREMAN, Appellant, v. RAINEN HOME FURNISHERS, INC. and Aetna Casualty and Surety Company, Respondents.
    No. 24416.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.

      Roger J. Barbieri and Leo C. Gotschall, Kansas City, for appellant.
    R. Robert Cohn and James F. Stigall, Kansas City, for respondent.
   HOWARD, Judge.

This is a workmen’s compensation case. The Industrial Commission affirmed the referee in denying benefits to appellant and the circuit court affirmed. On appeal to this court appellant contends that there was no substantial competent evidence upon the record as a whole to support the finding of the commission that appellant was an independent contractor and not a statutory employee.

Respondent is a corporation engaged in the furniture business. It sells furniture, carpeting and appliances. Late in 1962 respondent had removed a partition between two display rooms in the basement of its retail store, thus making one large display room. Electrical outlets which had previously been in the partition required relocation and respondent also desired additional electrical outlets and one or two additional electrical switches. It secured the services of appellant to perform the work of relocating the old electrical outlets and installing the new ones and moving or installing the switches. Appellant was an electrician by trade with many years of experience. He had done other jobs for respondent over the last seven years. He also worked for as many other employers as he could secure jobs. Respondent’s president, Jack Rainen, first contacted appellant and advised him in a general way what work was to be done, and instructed him to discuss the matter with the store manager for the details and exact locations of the electrical installations. After this was done, Mr. Rainen and appellant met at the store. Mr. Rainen wanted additional electrical outlets over and above those desired by the store manager and so instructed appellant. Appellant, working by himself, began the job and not long thereafter, while attempting to pull some electric wires through a conduit, fell off a ladder onto the concrete floor, and broke some bones in his hand. The injury and resulting disability are not in dispute in this case. The only dispute is whether or not appellant was an employee so as to be entitled to compensation.

Appellant contends that it was agreed that he would perform the electrical work for compensation at the rate of $2.50 per hour, plus the cost of materials. Respondent contends that he was to be paid a lump sum at the end of the job. Mr. Rainen testified that appellant first set a price of $69.00 for the job; that after he requested additional work over and above that designated by the store manager appellant set a price of $89.00 for the job. After the job was finished appellant submitted a bill for $183.25. Respondent considered this was too high; that it included items of materials not actually used; that in order to give appellant the benefit of the doubt and to adjust the dispute he offered to pay $110.00 for the job and that appellant accepted.

Appellant testified that Mr. Rainen told him in detail exactly what he was to do, had the right to give detailed directions and the right to discharge him; that respondent furnished some tools, notably the ladder from which he fell, and a “fish tail” tool used to pull wires through the conduits. It appears that appellant had his own ladder in his truck outside the building, but chose to use respondent’s ladder. There is some dispute as to whether the “fish tail” tool was, in fact, furnished by respondent. Appellant also testified that additional work and directions were given as he progressed with the job. After his injury, appellant secured the services of a young man who was an apprentice electrician (or “a halfway electrician” as appellant described him) to finish the job under appellant’s supervision. This young man was hired and was to be paid by appellant, not by respondent. Mr. Rainen, for respondent, testified that he merely designated the location where he wanted the electrical outlets and switches installed, and that he relied upon appellant’s skill and ability as an electrician to properly perform the work. That he did not attempt to, and did not have the right to supervise the details of appellant’s work. He denied that he had the right to fire appellant and testified that if appellant’s work was not done properly, he could not and would not fire him, but would refuse to pay for such work.

Appellant contends that Mr. Rainen admitted that he had the right to fire appellant. This is based on one question and answer as follows:

“Q. I understand that, but could you fire him if you wanted to?”
“A. If I had a reason to — ”

This answer was not complete. The witness was interrupted by another question, and from all of the testimony of Mr. Rain-en, it appears that the answer above quoted was merely a preliminary phrase and was not an admission of the right to fire appellant. When Mr. Rainen was uninterrupted he unequivocally denied that he had the right to fire.

The award of the Industrial Commission reads as follows:

“We find from all of the credible evidence that Virgil O. Shireman was an independent contractor and not an actual employee of Rainen Home Furnishers, Inc. on January 7, 1963, as alleged.
“We further find that Virgil O. Shire-man was not a statutory employee under the provision of Section 287.040(1) RS Mo.1959, for the reason that the work then and there being done was not ‘an operation of the usual business which he (the alleged statutory employer) there carries on’. Cf. Nabors vs. United Realty Co., [Mo.App.] 298 S.W.2d 474.”

Appellant contends that there was not sufficient evidence to support the finding of the commission that appellant was an independent contractor.

In ruling this and the other contention of appellant we must remember that the claimant has the burden of proof to bring himself within the provisions of the Workmen’s Compensation Act. The appellate court must consider the evidence in the light most favorable to the award. We can not substitute our judgment for the judgment of the commission, but must affirm the award, if upon a reading of the whole record, it appears that the commission’s award is supported by competent and substantial evidence. Grauf v. City of Salem, Mo.App., 283 S.W.2d 14, Liverman v. Wagner, Mo.App., 384 S.W.2d 107.

In determining whether an individual in the position of appellant is an employee within the meaning of the Workmen’s Compensation Act or is an independent contractor and therefore outside of the scope of the act, the courts have laid down the rule that the right of the alleged employer to control the detailed activities of the alleged employee is the determining factor, and that the right to fire the employee is particularly important in determining this issue. The answer to this question does not depend upon whether or not the employer did, in fact, exercise control over the detailed activities of the employee, but the crucial question is whether the employer had the right to so control the activities of the employee. See Maltz v. Jackoway-Katz Cap Company, 336 Mo. 1000, 82 S.W.2d 909, Fisher v. Hennessey, Mo.App., 329 S.W.2d 225, and Pratt v. Reed & Brown Hauling Company, Mo. App., 361 S.W.2d 57.

In the case before us, although appellant claimed that the employer had the right to control and to fire, he gave no evidence other than testimony as to this conclusion. He stated that respondent designated the location where he was to install the electrical outlets and switches and required him to change the locations of at least one switch, apparently as the result of respondent’s president changing his mind as to the location he desired. Appellant also testified that he was required to install additional outlets. It is not clear whether this referred to the additional outlets that Mr. Rainen desired over and above those designated by the store manager, or whether it referred to still further outlets required from time to time as the work progressed. In any event, the testimony of both appellant and Mr. Rainen appears to agree that respondent simply designated the location for the outlets and the switches and did not in any way attempt to control the detailed manner in which appellant performed the work of installing the outlets and switches. Mr. Rainen testified that he did not attempt to and did not have the right to control such detail. He relied on appellant’s skill and knowledge as an electrician to do the work right. Appellant testified that when he came to work he did not seek instructions from the store manager but that he knew what to do; that he could come to work and quit when he wanted to or work all night if he wanted to. Mr. Rainen testified that respondent allowed appellant to work on other jobs at the same time and when appellant expressed some doubt as to his ability to conceal all the wires as respondent desired he told appellant to “do the best you can”. We have heretofore referred to the testimony on both sides as to the right to fire and the method of payment. This evidence does not bring this case within the facts presented in Fisher v. Hennessey, supra, Mo.App., 329 S.W.2d 225, where the employer specifically testified that he could fire the claimant if he did bad work or used junk material, or was not on the job when he should be, etc. From such evidence the court found that the commission’s action in awarding benefits to claimant was supported by competent and substantial evidence.

In this case there was evidence that appellant was employed on the basis of a lump sum payment for the job and not on an hourly rate plus materials basis; that respondent did not have the right to control the detailed work of appellant, but merely designated the location of the installations desired, and left the detailed performance to the knowledge and skill of appellant. Further, there was evidence to support a finding that respondent did not have the right to fire appellant; that appellant was responsible for the completion of the job, and had the right to and did employ an assistant of his own choosing, without permission from respondent. Thus we find that the commission’s determination that appellant was an independent contractor and not an employee is supported by competent and substantial evidence and can not be disturbed.

Appellant’s next contention is that even if he is found to be an independent contractor, he is a “statutory employee” under the provisions of Section 287.040(1) RS Mo 1959, V.A.M.S., which provides: “Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.”

Under this statute our courts have repeatedly held that three elements must be present before one can be held to be a statutory employee. The evidence must show (1) that the work was performed under a contract, (2) that the injury occurred on or about the premises of the employer, and (3) that the injury must have occurred while the employee was doing work in the usual course of employer’s business. Here we have determined that the work was being performed under contract and there is no dispute that the injury occurred on the premises of the employer. Thus we are left to the one question of whether or not the work being done by the appellant was “in the usual course of his [employer’s] business”.

Respondent corporation is engaged in the furniture business, and in such business sells furniture, carpeting and appliances. The evidence was that respondent did not regularly employ an electrician, and that any electrical repair work on appliances, etc. was contracted out, and was not done on the premises by respondent’s employees. The electrical outlets were used to plug in appliances and lamps for display purposes. The installation of electrical outlets and switches was not the purpose for which the business was conducted and it was not a regularly re-occurring activity of the business. These electrical installations were used in the business, as was the rest of the store structure, and were undoubtedly not only useful but necessary, at least in a minimum amount. However, it is not believed that these factors bring this activity within the scope of the holdings in the cases cited by appellant.

In Kennedy v. J. D. Carson Company, Mo.App., 149 S.W.2d 424, the employer operated a furniture store, consisting of several floors with elevators to move customers and furniture to and from the various floors. These elevators required very frequent service and repair, and the claimant had contracted to furnish such service and repair at least once a week and as needed. The court held that the constant use of the elevators was essential to the conduct of the business in the multi-story building, and the activity of the claimant in servicing and repairing and keeping such elevators in running order was so necessary and essential to the business of the employer that the work was in the usual course of employer’s business and claimant was a statutory employee. In Viselli v. Missouri Theatre Bldg. Corp., Mo., 234 S.W.2d 563, the employer was engaged in the operation of an office building, and in such business contracted with its various tenants to furnish elevator service, heat, air conditioning, window washing services etc. The contract with the tenants provided for window washing at least every two weeks. The employer contracted with an independent contractor to perform the window washing service and the claim there involved was for the death of an employee of the independent contractor who fell from a window and was killed. The court found that such window washing was an essential part of the operation of the office building, which was the business conducted by employer, and, therefore, the dead employee of the independent contractor was a statutory employee under the statute above cited.

Noland v. George Tatum Mercantile Company, Mo., 313 S.W.2d 633, involved an employer who was engaged in selling and installing TV sets and antennas. In order to install an antenna for a customer he hired claimant to trim away tree limbs overhanging the roof of the customer’s house. The court held this to be a necessary operation in the usual course of the employer’s business of installing the merchandise sold, and that, therefore, it was within the purview of the statute. In Kirch v. Sheffield Steel Division, Inc., 174 F.Supp. 221, the United States District Court of the Western District of Missouri, applying Missouri law, held that where the contractor had continuously worked at various expansion and maintenance jobs in the employer’s steel plant for over ten years, and was ±hen engaged in modernizing production machinery, such activity of the contractor, who had almost become a division of the employer company, was a part of the usual business of the employer and that the injured employee was a statutory employee within the act.

From the evidence in the case at bar, it appears that the installation of electrical outlets and switches was not a usual activity in the course of respondent’s business. It does not appear that respondent regularly changed or added electric outlets or that it was necessary to the business to repeatedly or periodically have such work performed. It would appear to us that the activities of appellant in this case are more nearly comparable to the removal of heavy water tanks, which were no longer used in the apartment house, as involved in Nabors v. United Realty Company, Mo.App., 298 S.W.2d 474. Admittedly the outlets and switches installed by appellant were useful in respondent’s business, but they were not absolutely essential thereto, as was keeping the elevators running in Kennedy v. J. D. Carson Co., Mo.App., 149 S.W.2d 424, supra, or as was the window washing which the employer was under contract to perform on a continuous basis in Viselli v. Missouri Theatre Bldg. Corp., Mo., 234 S.W.2d 563.

We believe that the criteria set out in Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332, l. c. 334, would be applicable to the case at bar. The court there said: “ * * * the controlling principle has been frequently stated. It is: ‘if the work being done at the time of injury is not an operation of, or in the usual course of, the business which the employer customarily carries on upon his premises, but is only incidental, ancillary, or auxiliary thereto, then the contractor, subcontractor, or his employee who is injured while engaged in such character of work is not a “statutory employee” within the meaning of the act, and the owner or occupant of the premises having the work done under contract is not to be deemed the employer of such injured party for the purpose of having liability cast upon him under the provisions of the act.’ Rucker v. Blanke Baer Extract & Preserving Co., Mo.App., 162 S.W.2d 345, loc. cit. 347 and cases cited.”

On the basis of the foregoing authorities we agree with the finding of the Industrial Commission that appellant was not a statutory employee because the work he was performing was not done in the operation of the usual business carried on by respondent. Thus the award of the commission was supported by substantial and competent evidence and the judgment of the circuit court affirming the award is therefore affirmed.

All concur.


author: BRADY, Commissioner.

text:
    CITY OF ST. PETERS, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. Gregory KUESTER et al., Defendants-Respondents.
    No. 32353.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.
    Rehearing Denied April 12, 1966.

      Niedner, Niedner & Moerschel, St. Charles, for plaintiff-appellant.
    Louis S. Czech, Clayton, for defendants-respondents.
   BRADY, Commissioner.

Appellant brought an action for a declaratory judgment as provided by § 71.015, RSMo 1959, V.A.M.S. (commonly known as the “Sawyers Act”), authorizing it to hold an election on the issue as to whether its corporate boundaries should be extended. The trial court denied appellant the relief it sought and dismissed its action with prejudice. We will refer to the appellant as “the city” and to the respondents by their designation in the trial court or by their individual names.

It if our duty to review the case de novo reaching our own conclusions with respect to the law and the facts, but granting due deference to the finding of the trial court where the credibility of witnesses is involved. City of St. Ann v. Buschard, Mo.App., 356 S.W.2d 567.

Most of the facts are undisputed. The city has an area of 160 acres with a population of 450. The unincorporated area sought to be annexed consists of 220 acres and has a population of 600. The city existed as a village from 1910 until 1959 when it was incorporated as a fourth class city. It has the usual commercial establishments including a bank and a railroad station. About two-thirds of the city’s area lies and the greater part of its population lives on the north side of U.S. Interstate Highway 70, a four lane, divided, limited access highway. At the time of trial there were two roads which crossed the highway but these were soon to be closed and replaced with a single overpass. South of the highway the city consists mainly of a Catholic Church and its auxiliary buildings. The topography of the area is such that the city is hemmed in by Dardenne Creek on the west, by the Wabash Railroad on the north, and by a grain elevator area on the east. The logical course of expansion lies to the south.

There was extensive testimony as to the present government in the city. From this it appears that there is no city hall and space is rented for that purpose at the volunteer fire hall. There is no telephone service to the city. Its police department is headed by one of the aldermen who serves as “police commissioner.” His office was established by the city after this action was filed. There is a part-time police officer who has a regular place of business in the City of St. Charles, some miles away but who is available in the city in the evenings and at night. He has no separate telephone listing. A witness testified that he was tending bar in a tavern in the city when a patron became drunk and disorderly. The mayor of the city, who also was in the bar at the time, attempted to call the city marshal. The marshal had no one to relieve him at his business so he couldn’t come and take care of the drunken patron. The city frankly admits that the part-time officer has not always been available when he has been called and that the police service for the city is inadequate. There is no police car. The city has resolved to expand its police department but has not developed any actual cost figures or plans for doing so.

Assessed valuation in the city has increased from $357,000.00 in 1959 to $550,-000.00 at present. The tax rate is 45 cents for $100.00 evaluation for general purposes and $1.40 for waterworks bonds which now have an outstanding balance of $63,000.00. The tax rate and bonded indebtedness have steadily increased during the rise in assessed valuation. There was testimony that the tax rate necessary to retire the waterworks bonds could be reduced if annexation were permitted due to a broader base. There was evidence that these tax rates had been set by motion rather than by ordinance during the three years prior to trial. From February, 1962 until June, 1964 only four ordinances were proposed and passed.

The city has no street department, but the city streets are generally paved and lighted and there are some sidewalks. However, the city has constructed no new streets within the four years preceding trial and no sidewalks within the ten years preceding trial. It has no street employees or street equipment and the main street of the city is maintained by the state and county highway departments. Other streets within the city connect with and form a part of county roads and are maintained by St. Charles County.

The city has no municipally owned fire department, but a fire hall with two radio equipped trucks is located within the city and manned by volunteer firemen, two-thirds of whom are city residents. The fire hall is owned by the volunteer fire department and the services of that organization are available to dues paying members within the city and also to those living in the area the city seeks to annex.

The city’s water system can produce over 200,000 gallons per day and is adequate to serve more than 1,000 people for both domestic use and fire protection. The system has two deep wells, a 50,000 gallon elevated storage tank, and 14,000 feet of water mains which can readily be connected with the existing private water system in a portion of the area to be annexed. The city had entered into an agreement with the private water company serving a portion of the area to be annexed to augment the water supply of that area with some water from the city. The city’s water is from deep wells and untreated. It has a noticeable mineral content and to many persons is unpalatable without the use of water softening equipment. The public school attended by residents of both the city and the unincorporated area is supplied with water from the city. The janitor and maintenance man at the public school testified that the city water has an odor to it and the children complain about it. He also testified that a water softener was necessary to make the water palatable and to avoid such complaints. The cooks at the school bring their own water to use in cooking instead of being forced to use the city’s water. This is due to the taste of the water and the fact it discolors utensils. There was also testimony that the city’s water ran under inadequate pressure causing difficulties as to toilet flushing.

The city sewage is handled by individual septic tanks. It does not have a sanitary sewer system and the testimony was that this was not financially feasible under its present circumstances. It has employed an engineer who has presented preliminary plans of a system designed to serve both the city and the area to be annexed.

With reference to park facilities and to schools the evidence was that the only public recreational facility in the area is a park located within the city and owned by the Chamber of Commerce of the city which is presently used and maintained by residents of both the city and the area to be annexed. The parochial school is located in the city and the elementary public school serving both the city and the unincorporated area is located in the unincorporated area.

The city has an unpaid “building commissioner” who is also one of the aldermen who issues building permits and inspects septic tanks. It does not have any building, electrical, fire or zoning code, dog control or library ordinance. Neither does it have a public health ordinance other than the requirement for septic tank inspection.

There was some dispute in the testimony as to the availability of vacant building lots within the present boundaries of the city. The city’s testimony was that there were twelve acres of vacant ground within the city as presently constituted and that there were some scattered lots within the town including three located immediately off of the main street. The defendants’ evidence was that there were 22.42 acres of vacant land within the city as presently constituted and there were a total of 23 vacant lots. As of the date of trial the city admitted that there had been no applications for building permits on any vacant lots in the city.

With reference to the area which the city seeks to annex the facts are that it is substantially developed and contains extensive subdivisions. The remainder of the land not plotted into subdivisions has been built up by individual home owners with the exception of one large tract of land known as “the McMenamy tract.” The public school which lies within the area the city seeks to annex is at the southwest corner of the McMenamy tract. The best use of this tract of land is for residential purposes as it is benefited by the existence of city water which runs past it to the school and also by its proximity to the city. This tract comprises the eastern portion of the area to be annexed. In the approximate center of the area the city seeks to annex there is a rectangular portion of some forty acres which adjoins the city’s present south boundary. A subdivision known as “St. Peters Estates” containing about sixty homes is at the eastern half of this central area. The rest of the central area is vacant land but is suitable for residential development. Immediately to the south of the central part of the area sought to be annexed lies an unincorporated subdivision consisting of some 360 homes known as “Steeplechase Subdivision.” Steeplechase does not lie within the area which the city seeks to annex. At the western end of the area which the city seeks to annex is a rough rectangular tract containing about forty homes in a subdivision known as “St. Mary’s Subdivision” and about ten homes in another subdivision known as “Cottage Hills.” Land values in the unincorporated area have risen from $1,500.00 to $2,000.00 an acre to a present range of $2,000.00 to $5,-000.00 an acre.

Police protection available to the unincorporated area is that given from the state highway patrol and the county sheriff’s office. Testimony was that the county sheriff’s office maintains a dispatcher and four cars patrol throughout the county at all times. The subdivisions lying within the unincorporated area are patrolled a minimum of once a day and sometimes as many as four times in a given evening. Their officers have received F.B.I. training, they attend weekly schools, and they have attended the state patrol academy. The sheriff’s office is listed in the telephone book and the time to answer a call from any given area is fifteen minutes. One witness testified that he lived in the area which the city seeks to annex and had occasion to call upon the sheriff for protection and the sheriff had deputies at his residence within four to five minutes of his call. The sheriff of St. Charles County testified that his office presently provides police protection to the residents of the city. His office patrols the city at the same frequency as it does the area sought to be annexed and his officers actually walk and check the front doors of the business houses in the city at night. It was his opinion and it was also the opinion of Lt. Maxey of the Missouri State Highway Patrol that the city has inadequate police protection.

St. Charles County maintains most of the streets and roads in the area the city seeks to annex. These are of concrete asphaltic surfacing and most are 35 feet in width with a 60 foot right of way. There are some streets 28 feet wide. The main road in the area which the city seeks to annex and the streets in St. Peters Estates are well paved. The streets in St. Mary’s Subdivision are oiled and those in Cottage Hills have crushed rock surfacing. None are lighted and there are no sidewalks. There is no way to compel private contribution toward road or street maintenance in the unincorporated area, and the county’s funds for this purpose are limited with the result that some requests made by residents of the unincorporated area for work on the streets in the subdivisions have been refused. The county has provided street signs and does the weed cutting in the unincorporated area. Testimony was that the streets lying within St. Peters Estates were in much better condition and much better built than the streets located within the city.

With reference to water and sewer facilities in the unincorporated area the testimony was that the developer of Steeplechase Subdivision had organized the St. Peters sewer and water companies. The St. Peters Water Company has a 50,000 gallon storage tank, a 4,000 gallon pressure tank, a high service pump that pumps 150 gallons per minute and a four gallons per minute fire pump. The protection is adequate for fire as well as home usage. The system is designed for a capacity of 530 homes and is presently serving 406 homes. It has been in existence since December of 1959. The water from their wells does not have a had taste, does not discolor the utensils and the people who utilize it do not require water softeners. The water rates are about one-third cheaper than the city’s water rates. At the date of trial the system was pumping some 220,000 gallons per day and the capacity of the present system was 300,000 gallons. The St. Peters Sewer Company’s lagoon is 7½ acres in size and located on a twenty-acre tract. It provides sewer services for Steeplechase Subdivision, for St. Peters Estates Subdivision, and for private residents located on the main county road going through the unincorporated area.

There was testimony that the services received in the unincorporated area were satisfactory; that 95 per cent of the roads in the unincorporated area are in good shape; and that residents of the unincorporated area would receive no benefits from the annexation.

The testimony also was that the residents of the unincorporated area now receive benefits such as zoning, mosquito and insect spraying, building ordinances, sewers in some areas, and health services which the city does not provide. Upon a complaint being made about the presence of rats in the city the complainant was informed that nothing could be done about it by the city.

Whether or not a city should annex contiguous, unincorporated territory is a legislative decision. We are not authorized to substitute our judgment for that of the city’s governing board, whose decision as to that matter must be sustained unless it was arbitrarily or clearly unreasonably made. City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4(7, 8); City of Lexington v. Shepard, Mo.App., 344 S.W. 2d 308(1). The rules or guides which have been stated in the cases merely constitute factors of which the court should be cognizant. Each of these factors is to be considered in relation to the others, none of them is necessarily controlling. No fixed formulae can be stated, each case standing upon its own facts. City of Aurora v. Empire Dist. Electric Co., Mo.App., 354 S.W.2d 45, l. c. 48.

Section 71.015, supra, requires the city to state the area to be annexed, that such annexation is reasonable and necessary to the proper development of the city, and the ability of the city to furnish normal municipal services of said city to said unincorporated area within a reasonable time after the annexation becomes effective. The city has the burden of proof as to these matters. Section 71.015, supra, and cases collected at n. 3. There is no issue here as to the city’s bearing of its burden as to the first requirement and, as will later appear, we do not reach the third requirement. The general issue here involved is whether the city carried its burden as to the second requirement.

It has been held that the words “to the proper development of said city” as found in § 71.015, subd. 2, supra, do not limit judicial inquiry as to reasonableness of the proposed annexation to the standpoint of the city alone. City of Olivette v. Graeler, Mo., 338 S.W.2d 827, l. c. 836-837. Both the city and the residents of the area to be annexed are entitled to a judicial inquiry into the reasonableness of the annexation. If this were not so, the Sawyers Act might be vulnerable to an attack upon constitutional grounds. City of Olivette v. Graeler, supra; City of Woodson Terrace v. Herklotz, Mo.App., 349 S.W.2d 446, l. c. 451.

The rule is that, as to showing the reasonableness of the annexation from the standpoint of the city, the city carries its burden when proof is presented which raises a fairly debatable issue as to that matter. City of St. Joseph v. Hankinson, supra. In City of St. Ann v. Buschard, supra, 356 S.W.2d 1. c. 575-576, this court held the burden of proof required of an annexing city in order for it to show the annexation reasonable so far as the area to be annexed is concerned was the same as when the court is considering reasonableness from the standpoint of the city; i. e., if, when viewed from the standpoint of the area to be annexed, the proof raises a fairly debatable issue regarding the reasonableness of the annexation the city has met the burden. The specific issue involved in this appeal is whether, viewing this proposed annexation from the standpoint of the area which the city seeks to annex, the proof rises to the required standard. We have concluded that it does not.

In City of Aurora v. Empire Dist. Electric Co., supra, 354 S.W.2d, l. c. 47, it was said that there should be “ * * * a comparison of the relative benefit or detriment, in other words, fairness to the citizens of the annexed territory who have no voice in the proceedings for annexation * * A benefit would accrue at least at parts of the area which the city seeks to annex if sewer facilities were to be furnished. But the central portion of that area, St. Peters Estates, already has an adequate sewer system and over half of the population of the area which the city seeks to annex lives in this subdivision. This benefit not only is limited to less than half the population of the area which the city seeks to annex but is also conditional even as to that proportion of the population of the area. This for the reason the city does not have sewer facilities at present that it can extend to the unincorporated area. In order for this to be a benefit there would have to be a vote by the people involved to submit to a substantial financial obligation. The same is true of the water situation. The greater proportion of the population of the unincorporated area now has water available from a private utility and at a rate about one-third less than that which the city is presently charging. The western portion of the area to be annexed now is forced to rely upon individual wells and cisterns and to that portion of the area there is no doubt but the extension of water would be a substantial benefit. The eastern portion of the area to be annexed has no substantial need for water now, since it consists of the McMenamy tract and other undeveloped and unplatted land. Moreover, city water is now available to almost all of the eastern area as the city’s water lines go right by it in order to reach the public school. It is clear from the evidence that the area which the city seeks to annex now has better police protection than city residents. The streets are in better condition and better constructed. Their maintenance in the city is generally the same as that in the unincorporated area; i. e., by the county and state highway department. Annexation would deprive the residents of the unincorporated area from benefits they now receive from county zoning, mosquito and insect spraying, building and health ordinances and services. In addition the residents of the area which the city seeks to annex would be burdened with the city’s present financial obligations and any obligations that the city would have to incur should annexation be approved. The proof adduced in this case is not sufficient to sustain the city’s burden of showing that the annexation is reasonable when viewed from the standpoint of the area which is to be annexed, City of Aurora v. Empire Dist. Electric Co., supra, and it follows that the judgment of the trial court must be affirmed.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

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


author: BROADDUS, Special Commissioner.

text:
    Wernell LINNEMAN and Ruth H. Linneman, Plaintiffs-Respondents, v. Melvin WHITLEY and Juanita Whitley, Defendants-Appellants.
    No. 24332.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.

      Wm. B. Nivert, Jr., Glasgow, Raymond C. Lewis, Jr., Columbia, for appellant.
    James J. Wheeler, Keytesville, for respondent.
   BROADDUS, Special Commissioner.

This is an appeal from the order of the trial court refusing to set aside a default judgment.

Respondents, as plaintiffs, filed a petition in the Circuit Court of Chariton County against appellants as defendants. The petition was in two counts. The first count alleged that defendants were the owners of a tract of land in Chariton County containing 120 acres; that defendants had employed the United Farm Agency to act as their agent in selling said premises, and had authorized said agency or its representatives to make a binding contract in the name of defendants; that on July 25, 1962, the defendants, through their agent, offered the premises for sale to plaintiffs for the sum of $26,500, and plaintiffs agreed to purchase the same for this sum; that the parties entered into a written agreement of sale, and, upon the signing of said contract, plaintiffs paid to the United Farm Agency, as agent for defendants, the sum of $2,650, which was to be applied to the purchase price; that plaintiffs have always been ready, willing and able to fulfill said agreement; that they have tendered the balance of the purchase price to defendants but that defendants have refused to execute and deliver a proper warranty deed conveying said premises to plaintiffs. The prayer of this count was for specific performance.

For the second count of their petition plaintiffs adopted the allegations contained in Count I and allege that by reason of the failure of defendants to perform their part of the agreement plaintiffs were entitled to recover the sum of $2,650 from defendants.

Appellants filed an answer which was a general denial. Thereafter, on appellants application for a change of venue the cause was transferred to the Circuit Court of Linn County.

The record shows that on May 1, 1964, the trial court entered an order setting the case for trial on September 14, 1964. It also shows that by letter dated May 22, 1964, the trial court notified the attorneys for all parties of the date the cause was set for trial.

The record further shows that on September 14, 1964, the plaintiffs appeared and answered ready for trial but that the defendants defaulted. Evidence was offered by the plaintiffs and the court found the issues for defendants on the first count (specific performance) but entered a judgment against both defendants on the second count in the sum of $2,650.

The evidence offered at the default hearing consisted of testimony of both of the plaintiffs and of Wallace Enyeart, a representative of the United Farm Agency. According to this testimony, the appellants employed Mr. Enyeart during June 1962, by written agreement to sell the farm that is the subject of this lawsuit, and that in accordance with his employment agreement Mr. Enyeart obtained the respondents as buyers for said farm for the sum of $26,500. Thereafter a written contract for the sale of the real estate was entered into between the respondents and the appellant Melvin Whitley. At the time this contract was executed respondents paid Mr. Enyeart the sum of $2,650. At the time of the hearing the defendants-appellants were still in possession of the farm. And the deposit of $2,650 had not been returned to plaintiffs-respondents.

On September 21, 1964, the defendants filed a motion to set aside the default judgment. This verified motion asked for vacation of the default judgment for the reason that neither the defendants nor their attorney had any notice of the trial setting. On April 12, 1965, the trial court heard and overruled the motion, and on April 21, 1965, defendants filed their notice of appeal.

On August 9, 1965, appellants’ present counsel were employed and they discovered that the time for filing a transcript had expired and many of the facts concerning appellants’ prior attorney were not of record. Appellants’ present counsel immediately filed a motion in this court asking permission to file the transcript and to allow the filing of affidavits. The motion alleged, among other things, that appellants had employed their former attorney believing him to be a person of professional ability and integrity and without any reason to believe that he would not properly represent them; that they had never been notified that their case was to be heard on September 14, 1964; that their former attorney had become engaged in criminal activities at the time the case was set for trial and was arrested on the following day. The motion asserted that the conduct of the former attorney constituted an abandonment entitling appellants to vacation of the default judgment and that they should be entitled to file affidavits to establish these facts. On September 1, 1965, this court sustained appellants’ motion to the extent of the allowing the filing of the transcript but denied appellants leave to file the tendered affidavits.

In fairness to appellants’ present counsel it should be made clear that they had no relationship with this case or with the appellants prior to their employment in August, 1965, and in particular have had no relationship whatever with appellants’ former attorney.

Appellants contend that this court should reconsider its ruling of September 1, 1965, and accept and consider the affidavits tendered by appellants, and set aside the default judgment in the interest of equity and justice.

In the case of Dennison v. City of Kansas, 95 Mo. 416, 8 S.W. 429, the court was asked to consider certain affidavits which were filed in the Supreme Court after the cause was transferred to it by appeal. The court declined to do so saying: “Our rule and duty are to determine a cause upon the record as it comes to us from the trial court.”

In the case of Callicotte v. Chicago R. I. P. Ry. Co., 274 Mo. 689, 204 S.W. 529, the Supreme Court said: “Unfortunately for appellant, we are restricted to the record in the case as made at the trial.” To the same effect is the holding of the court in the case of Linn County Bank v. Clifton, 263 Mo. 200, 172 S.W. 388.

In view of the above holdings, which we are bound to follow, we cannot consider the tendered affidavits. According to the record as made in the trial court appellants’ then counsel had notice of the setting for trial of the case. His negligence in permitting the default judgment to be entered is imputable to the appellants. Edwards v. Rovin, 322 S.W.2d 139, Mo.App.

The record discloses another reason why we should not disturb the ruling of the trial court. Appellants’ motion to set aside the judgment did not allege that they have a good defense. It is well settled that a court will not set aside a judgment unless the defendant shall allege and present prima facie proof that he has a meritorious defense to the action. Evans v. Buente, 284 S.W.2d 543, 547, Mo.App.

The contention is also made that the trial court erred in rendering judgment against appellant Juanita Whitley for the reason it appears that she did not execute the final contract and that “even though this appeal is from an order refusing to set aside a default judgment, this court should nevertheless consider this point under the doctrine of plain error.”

The written agreement between the United Farm Agency and appellants contained this language: “I employ you to procure a purchaser ready, willing and able to buy said property at the price and terms stated on lines 72 through 75 of page 2 of this agreement, and authorize you, or your representative, to make in my name a binding contract for the sale of same in accordance with said price and terms, and to accept and give receipts for any money or deposits received in. connection with such contract of sale.”

Mrs. Whitley signed this listing agreement, and her agent, acting in her behalf, entered into a contract for the sale of the farm, as he had been authorized to do. He accepted, and still held, a down payment for the farm. There was no plea of the statute of frauds, which is an affirmative defense. Sect. 509.090 V.A.M.S., Sup.Ct. Rule 55.10, V.A.M.R. The contention lacks merit.

The trial court’s order should be affirmed. Your Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the court, and the order of the trial court refusing to set aside the default judgment is affirmed.

All concur.