author: HOGAN, Judge.

text:
    MID-CONTINENT AERIAL SPRAYERS, INC., Plaintiff-Respondent, v. INDUSTRIAL COMMISSION of Missouri, DIVISION OF EMPLOYMENT SECURITY of Missouri, Defendants-Appellants, and John C. Emerson, Defendant.
    No. 8584.
    Springfield Court of Appeals. Missouri.
    Oct. 13, 1967.

      George Schwartz, Jefferson City, for defendant-appellant Division of Employment Security.
    Arthur H. Bitter, Jefferson City, for defendant-appellant Industrial Commission.
    James E. Reeves, Caruthersville, for plaintiff-respondent.
   HOGAN, Judge.

This case involves a construction of the statutory provisions which except “agricultural labor” from the coverage of the Employment Security Law, now codified as Chapter 288, RSMo 1959, V.A.M.S. The appeal has come to us in this manner: On October 16, 1962, defendant Emerson filed an initial claim for benefits, and on December 13, 1962, the Division administratively determined that he had been engaged in “insured work” for plaintiff Mid-Continent Aerial Sprayers during the third and fourth calendar quarters of 1961 and the first and second calendar quarters of 1962. Mid-Continent took a timely administrative appeal from this determination, maintaining among other things that it was wholly exempt from contribution under the Employment Security Law because all the services performed by all its employees were “agricultural labor.” Subsequently, a hearing was held before an appeals referee, as provided by Section 288.190. At that time, two matters were taken up' and considered: 1) whether plaintiff Mid-Continent was an “employer,” as defined by Section 288.032; and 2) whether defendant Emerson’s services for Mid-Continent constituted “insured work” within the meaning of Section 288.030(18). On May 23, 1963, the appeals referee rendered two decisions, one holding that some of the work performed by some of the employees of Mid-Continent was exempt as “agricultural labor,” but that plaintiff was an employer under the Law, and the other ruling that defendant Emerson had been engaged in “insured work” during the period in question. Plaintiff thereupon requested a review by the Industrial Commission (Section 288.020), which simply adopted and affirmed the decision of the appeals referee on the basis of the evidence previously submitted.

Plaintiff Mid-Continent thereupon filed this action for judicial review of the Commission’s finding, as provided by Section 288.210, on the ground that all the services of all its employees were excluded from coverage as “agricultural labor.” The trial court found that the plaintiff was not an employer subject to the Law and reversed the decision of the Commission outright. The Commission and the Division thereupon appealed, as they had a right to do. Dubinsky Brothers, Inc. v. Industrial Commission of Mo., Mo., 373 S.W.2d 9, 14 [1], Since the Employment Security Law is not a revenue law in the appellate jurisdictional sense, and neither the Commission nor the Division is a “state officer” within the meaning of Section 3, Article V, of the Constitution of 1945, we have primary jurisdiction of the appeal. E. B. Jones Motor Co. v. Industrial Commission of Mo., Division of Employment Security, Mo., 298 S.W.2d 407, 410 [1] [2]. The cause is before us for review as provided by Section 22, Article V, of the Constitution of 1945. We must determine whether the findings of the Commission are supported by competent and substantial evidence upon the whole record, and are authorized by law. We may not substitute our own judgment on the evidence for that of the Commission, but we are required to decide whether it could reasonably have made its findings and reached its result upon consideration of all the evidence before it, and we are authorized to set aside its decision if it is clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp., Mo., 355 Mo. 670, 674, 197 S.W.2d 647, 649 [1-5]; Union-May-Stern Co. v. Industrial Commission, Mo.App., 273 S.W.2d 766, 768 [1]; Meyer v. Industrial Commission of Mo., 240 Mo.App. 1022, 1031, 223 S.W.2d 835, 839 [4].

As material to our review, the facts are that plaintiff Mid-Cóntinent Aerial Sprayers is a corporation which engages in the business of spraying and dusting crops with fertilizers, pesticides and defoliants. Its headquarters and base of operations is located near Hayti, Missouri, where it maintains an airstrip, 14 airplane hangars, a maintenance shop, and an office. During the period involved here, the plaintiff owned between eight and 12 airplanes, and from time to time leased others.

The plaintiff does business by contracting orally with an individual farmer for what the plaintiff calls a “complete service.” At least one of the plaintiff’s officers, and possibly others, have had specialized training in the use of agricultural chemicals, and as a first step in the performance of its service, plaintiff’s managing officer inspects the fields and charts the area to be sprayed. Plaintiff then recommends the type of chemical to be used and furnishes the airplane, the chemical, the pilot, and sometimes further technical advice. Plaintiff is paid “by the acre” for the complete service.

Plaintiff had several different classes of employees on its payroll during the period involved. It employed between eight and ten airplane pilots, whose services the appellants concede to be excluded. Plaintiff also had at least three employees, called mixers and loaders, whose duty it was to mix the chemicals used and load them into the airplanes. These employees also assisted the pilots in routine maintenance of the airplanes. Sometimes the chemicals are hauled from the shipping dock or chemical supply house and delivered directly to the airplanes, and are loaded directly at the spraying site, and sometimes the chemicals are loaded at the “home field” near Hayti. Mr. Richard Reade, who described himself as “owner of the company,” was asked at the hearing before the appeals referee “ * * * what percentage of your spraying business was conducted by loading on your home field * * * and [what] percent * * * was conducted off the farmers’ strips * * * located on farms,” and he answered “ * * * I would say in round figures * * * 85 percent of our work was done on what we call farm type strips. * * * ” Mr. Reade repeated this estimate concerning the situs of the mixing and loading work on examination by the referee. The referee pursued the subject, asking if the plaintiff maintained any record to indicate by pay period whether the loaders had worked on the farm or at the home field, and the plaintiff’s secretary-treasurer, a Mr. Kelley, stated, “It would be impossible to keep an individual record of each area * * * [because] we treat upwards of a thousand accounts.” Mr. Reade also stated, at another point, that the situs of the loading work “varies.” The plaintiff also employed at least three mechanics or maintenance men who worked primarily at its base of operations, and Mr. Kelley, who can be classified as a full-time office worker. Mr. Kelley also performed his duties primarily at the plaintiff’s home field near Hayti.

Mr. Emerson, the claimant, testified at the appeals hearing that he went to work for the plaintiff, he “believed,” in June 1960 and worked until June 1962. His work was “mostly maintenance and loading.” Mr. Emerson said he did not do all of his work in the shop, because “when we were on the road, we worked where we were at.” Asked to compare the percentage of time spent in the shop with the time spent “out on the road,” Mr. Emerson stated, “I believe it was about 50 percent.” Mr. Emerson also did some mixing and loading, “if I was there at the time.” As opposed to the other maintenance men, Mr. Emerson’s work required him to travel with the airplane.

The appellants’ position is that, on the evidence submitted, the Commission could reasonably have concluded that the respondent plaintiff was an “employer” under the statutory definition, because it had at least four or more individuals in employment who were engaged in covered activity for some portion of a day, as required by Section 288.032(1) ; that defendant Emerson was engaged in “insured work,” and that in no view of the matter could it be said that all the services performed by all plaintiff’s employees were excluded. The respondent sticks to its guns in this court, and simply argues that all its activities are excluded from coverage because they constitute “agricultural labor.”

It is unnecessary for the purpose of this opinion to discuss the origin, purpose and development of our Employment Security Law and the provisions therein which exempt “agricultural labor.” The exemp-tive provisions applicable at the time here involved were enacted L.1957, pp. 534-535, were subsequently codified as Section 288.034(6) (a), and read, so far as material :

“(6) The term ‘employment’ shall not include:
(a) ‘Agricultural labor.’ This term includes all services performed:
a. On 'a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, fish, and fur-bearing animals and wildlife.
b. In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane or flood, if the major part of such service is performed on a farm.”

The respondent’s argument that all its activities are exempt is based upon the premise that a general sort of exemption is granted to all agricultural activities by Section 288.034(6) (a), and that the definitions following do not restrict, but only illustrate, the activities which are excluded. In support of this point, the respondent cites such cases as Murphy v. Mid-West Mushroom Co., 350 Mo. 658, 168 S.W.2d 75; St. Louis Rose Co. v. Unemployment Compensation Commission, 348 Mo. 1153, 159 S.W.2d 249; Stuart v. Kleck, (9 Cir.) 129 F.2d 400; Chester C. Fosgate Co. v. United States, (5 Cir.) 125 F.2d 775; Scully v. United States, 70 F.Supp. 239, 108 Ct.Cl. 310, and the Pioneer Potato case, supra. It is true, of course, that the employment security acts of the several states and their federal counterparts represent a cooperative effort by the states and the national government to carry out a common public purpose, and both judicial and executive constructions of the federal legislation are persuasive in construing our Employment Security Law, Marty v. State Tax Commission of Mo., Mo., 336 S.W.2d 696, 701 [4]; American Nat. Ins. Co. v. Keitel, 353 Mo. 1107, 186 S.W.2d 447, 448-449 [2-4]; Arnold College for Hygiene, etc. v. Danaher, 131 Conn. 503, 41 A.2d 89, 90 [1]; 82 C.J.S. Statutes § 371, p. 859, but without attempting any judicial gloss on the federal cases, we do not believe they stand for the proposition to which the respondent cites them. The Stuart and Fosgate cases held, inter alia, that services performed on a farm, in the employ of any person, in connection with the cultivation of the soil, were exempted, thus interpreting' Treasury Regulation 90, promulgated in aid of the Social Security Act of 1935, to exempt the services involved in those two cases without regard to the identity of the employer. Stuart v. Kleck, supra, 129 F.2d at 403 [3] [4]; Chester C. Fosgate Co. v. United States, supra, 125 F.2d at 778 [2]. See Latimer v. United States, D.C.Cal, 52 F.Supp. 228, 234 [6]. Subsequently, the Congress adopted a definition of “agricultural labor” which conformed to this interpretation. 53 Stat. 1373, 1377. The Scully case, 70 F.Supp. 239, 108 Ct.Cl. 310, rather broadly defined the phrase “agricultural labor,” but the services involved were performed by employees, not by independent contractors, and most of the activity involved took place on a farm. Scully v. United States, supra, 70 F.Supp. at 254. The Pioneer Potato case, supra, 17 N.J. 543, 111 A.2d 888, 53 A.L.R.2d 397, dealt with certain post-harvest activities which the Congress exempted by amending the law in 1939, 53 Stat. 1373, 1377-1378, see Burger v. Social Security Board, D.C.Cal., 66 F.Supp. 619, 622-625, and the ruling in Pioneer Potato does not bear on the kind of activity in dispute in this case. The two Missouri cases held that the term “agricultural labor” was not limited to such labor as is ordinarily performed on a farm, but included growing flowers in greenhouses and the culture of mushrooms. We agree that these rulings were sound; indeed the definition of the word “farm” was subsequently expanded to include the kind of activity considered in the Murphy and St. Louis Rose cases. See Section 288.034(6) (a) e.

But whatever may have been the true rationale of these cases, and whether or not the expressed inclusions in the statutory definition of “agricultural labor” are exclusive, we cannot agree that the nature of the work alone determines whether a given service is exempted by subpara-graphs a. and b. of Section 288.034(6) (a), without regard to any other factor. Sub-paragraph a. exempts all services performed “[o]n a farm, in the employ of any person, * * * in connection with raising or harvesting any agricultural or horticultural commodity * * *.” (Emphasis added.) This subparagraph thus excludes all activity incident to the growing process, whether or not the worker is in the farmer’s employ, Drummonds Poultry Transportation Service v. Wheeler, D.C. Maine, 178 F.Supp. 12, 15 [1], but requires that the services be performed on a farm. Farming, Inc. v. Manning, supra, 219 F.2d at 781 [1]. Subparagraph b. broadly excludes managerial and maintenance services, but requires that the services be performed “[i]n the employ of the owner or tenant or other operator of a farm”. The words “employ,” “employment,” and “employee” are used in the Employment Security Law in their plain or ordinary and usual sense, A. J. Meyer & Co. v. Unemployment Compensation Commission, supra, 348 Mo. at 159-161, 152 S.W.2d at 189-190 [4, 5], and for the activities described in subparagraph b. to be exempt they must be performed by an employee. Scofield v. Tinnin, (5 Cir.) 171 F.2d 227, 228-229 [1] [2]. So, in addition to the character of the service, the situs of the work must be considered if exemption is claimed under Section 288.034(6) (a) a., and the identity of the employer must be taken into account if exemption is claimed under Section 288.034(6) (a) b. We reject the respondent’s contention that it is wholly exempt simply because its employees are engaged in activity incident to the production of an agricultural commodity. We must consider the respondent’s claim of exemption piecemeal.

First, the parties concede that the activities of the pilots — the crop-dusters themselves — are excluded, and we agree. Florek v. Sparks Flying Service, Inc., 83 Idaho 160, 359 P.2d 511, 512-513 [1, 2], [3].

The respondent also employed “an average of three” mechanics or maintenance men, whose duty it was to keep the airplanes in good repair. Primarily, their work was done at the respondent’s base of operations, although they sometimes worked in the field. The respondent also employed a Mr. Kelley, who was a full-time office worker. The Commission has found that the services performed by these employees — the maintenance men and the office worker — are not excluded, and again we agree. Section 288.034(6) (a) b. excludes services performed “ * * * in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment,” but the exclusion applies only if the work is done by employees of the owner, tenant or operator of the farm on which the work is done, Scofield v. Tinnin, supra, 171 F.2d at 229 [2], and in this case the maintenance men and Mr. Kelley were clearly the respondent’s employees. Our conclusion is supported by the fact that Treas.Reg. § 31.3306(k)-l (c) (2) and (3) (1961) so interpreted the parallel Federal statute, now codified as 26 U.S.C.A. § 3306 (k) (2). The regulation read:

“(2) The services described * * * may include, for example, services performed by carpenters, painters, mechan-jcs * * * bookkeepers, and other skilled or semiskilled workers, which contribute in any way to the conduct of the farm or farms, as such, operated by the person employing them, as distinguished from any other enterprise in which such person may be engaged.
(3) Since the services described in this paragraph must be performed in the employ of the owner or tenant or other operator of the farm, services performed by employees of a commercial painting concern, for example, which contracts with a farmer to renovate his farm properties, do not constitute agricultural labor.” (Emphasis added.)

Our limited research on the subject indicates no appreciable change in subsequent Treasury Regulations, and if judicial and executive interpretations of Federal legislation are not absolutely controlling, they are, as we say, persuasive. Section 288.034 (1); American Nat. Ins. Co. v. Keitel, supra, 353 Mo. 1107, 186 S.W.2d at 448-449.

The status of the work done by the mixers and loaders presents more difficulty. On principles similar to those stated in the Florek case, supra, the parties seem agreed that the services performed by the mixers and loaders would be exempt under the provisions of Section 288.034(6) (a) a. as an activity in connection with raising an agricultural commodity, if the services were performed on a farm.

The evidence bearing on this point, presented at the administrative hearing was that the chemicals used were usually loaded on the aircraft at the operating or dusting site. Respondent’s managing officer “estimated” that 85 per cent of the loading was done on “farm type” strips. This witness was also asked to describe what the mixers and loaders (which he referred to simply as loaders) did, and he answered: “The loaders drive and pick up tank trucks, whatever it may be, the vehicle that carries the water, to wherever we may be working, and he mixes the chemical with water or whatever we may use, and loads it in the airplane. Assists the pilot in routine maintenance and things like that.” The witness reiterated, at yet another point, that 85 per cent of the loading was done on the farms where respondent worked. Mr. Kelley interjected that “spray operations are so localized that one time it might be all done on the strip, sometimes maybe none done on the strip.” It was admitted that respondent’s records did not show the percentage of the loading work done on the farm, or that done off the farm. Holding that the respondent’s records were inadequate in this respect, the Commission found that since the appellant kept no record indicating the situs of the loaders’ work, “all services performed by the mixers and loaders must be considered as being performed in ‘employment’ and covered by the Law.”

Section 288.034(7) provides, in material part, that:

“The term ‘employment’ shall include or exclude the entire service of an individual for an employing unit during a pay period in which his services are not all excluded under the foregoing provisions, on the following basis: If the services performed during one-half or more of any pay period constitute employment as otherwise defined in this law, all the services performed during such period shall be deemed to be employment; but if the services performed during more than one-half of any such pay period do not constitute employment as otherwise defined in this law, then none of the services for such period shall be deemed to be employment.”

The appellants argue that since a proper record was not kept and since the respondent had the burden of proving exemption under Section 288.034, the Commission’s finding is justified. We cannot agree to this argument. Assuming that respondent had the burden of showing exemption, we could not go further and hold that the exemption must be proved by introducing a record, rather than by giving sworn testimony. The only evidence presented in the record bearing upon the situs of the mixers’ and loaders’ work is the evidence we have just recited, and a paragraph in the appeals referee’s findings that a deputy had determined administratively (how, why, or by what method is not shown) that respondent’s chemical mixers were performing services in “employment.” The appellants’ argument amounts to an assertion that respondent’s failure to keep a record affirmatively shows where these workers performed their services. We find no justification for this argument in the Employment Security Law, nor in the unreported Ohio decision to which the Commission cited us. The Division is given certain inquisitorial powers by the Employment Security Law, and the record does recite that some administrative determination had been made prior to the time evidence was taken. Perhaps the determination was made upon the basis of some fact discovered by the Division, but all the appellants have to present here is the absence of any record made by the respondent. We cannot logically infer the existence of any fact, we think, from the respondent’s lack of records. The minimum standard for any administrative decision is that it be supported by competent and sub-stantial evidence, Article V, Section 22, Constitution of 1945; State ex rel. St. Louis Pub. Serv. Co. v. Public Service Commission, 365 Mo. 1032, 1041-1042, 291 S.W.2d 95, 101-102 [7], and if we are to affirm the administrative finding, the evidence upon which it is based must appear on the record presented. Koplar v. State Tax Commission, Mo., 321 S.W.2d 686, 695 [8]. The Commission’s finding that the mixers and loaders were engaged in covered employment is not supported by competent and substantial evidence upon the whole record, and is therefore not authorized by law.

There remains the matter of the claim of defendant Emerson. Defendant Emerson was engaged in performing services as a mechanic or maintenance man. As we have previously stated, he was exempt under the provisions of Section 288.034(6) (a) b., if at all, and this subparagraph requires that his work be done in the employ of the owner, tenant, or other operator of the farm. Mr. Emerson was employed by the respondent, his services were not exempt, and the Commission’s finding that he was entitled to benefits is correct.

The record also indicates that the respondent had, during the period involved, at least four persons employed in maintenance work and office work in each of 20 different calendar weeks, and we agree that the respondent is an “employer” within the meaning of Section 288.032.

For the reasons indicated, we hold that the services of the pilots and the loaders, or mixers and loaders, were exempt from the operation of the Employment Security Law; the respondent was an “employer” within the meaning of the Employment Security Law, and defendant Emerson was engaged in covered employment. The cause is therefore reversed and remanded, with directions to enter a judgment not inconsistent with the views expressed in this opinion. It is SO' ordered.

STONE, P. J., and TITUS, J., concur.

      . All references to statutes are to this revision, except where otherwise specifically noted.

      . Those interested, if any, in the general background of the legislation and the “agricultural labor” exclusion may consult A. J. Meyer & Co. v. Unemployment Compensation Commission, 348 Mo. 147, 152 S.W.2d 184; Pioneer Potato Co., Inc. v. Division of Employment Security, Dept. of Labor and Industry, State of New Jersey, 17 N.J. 543, 111 A.2d 888, 53 A.L.E.2d 397; Anno., 53 A.L.R.2d 406 (1957).

      . Without tracing all its subsequent legislative history, the paragraph in question is at this writing codified as part of the Federal Unemployment Tax Act, 26 U.S. C.A. § 3306 (k) (1). The cognate Missouri provision is Section 288.034(6) (a) a. For a comparison of the Federal definitions, see Anno., supra, 53 A.L.R.2d 406, § 1, pp. 407-409.

      . The authority is divided on the question. Some decisions indicate such statutory inclusions are definitions and extensions of the term “agricultural labor,” Jones v. Gaylord Guernsey Farms, (10 Cir.) 128 F.2d 1008, 1010-1011 [2]; Equitable Life Ins. Co. v. Iowa Employment Security Comm., 231 Iowa 889, 2 N.W.2d 262, 264-265 [2], 139 A.L.R. 885, indicating that “* * * both the legislative and [the previous] executive interpretation[s] of the act [are] in accord.” Christgau v. Woodlawn Cemetery Ass’n., 208 Minn. 263, 293 N.W. 619, 628. Other decisions support respondent’s position that the definitions are not exclusive. Farming, Inc. v. Manning, (3 Cir.) 219 F.2d 779, 782 [2].

      . Which reads: “(2) in the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment, or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.”


source: Caselaw Access Project

author: ANDERSON, Presiding Judge.

license: Public Domain

text:
    FAIRVIEW CEMETERY PERPETUAL CARE ASSOCIATION, a Corporation, Plaintiff-Respondent, v. Forrest WHITWORTH, Stewart Weber, Maxine Nevels, Kenneth Pursley, Carol Lee and Harold Perkins, Individually and on Behalf of Themselves and Other Parties Having an Interest or Concern in the Fairview Cemetery, Defendants-Appellants.
    No. 32443.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.
    Motion for Rehearing and Modification Denied Oct. 17, 1967.
    Charles A. Sheehan, House Springs, for defendants-appellants.
    John W. Waller, Sullivan, Thomas- J. Briegel, Union, for plaintiff-respondent.
   ANDERSON, Presiding Judge.

This action was brought by plaintiff, Fairview Cemetery Perpetual Care Association, on January 27, 1964, against defendants individually having an interest in Fair-view Cemetery, and as representatives of others having a like interest. The petition sought to have set aside a prior judgment of the court rendered on May 7, 1963, and, in paragraph 13 thereof, sought a declaration of the rights of the parties with respect to certain matters connected with the interest and use of the cemetery, including the proposition whether or not upon the issuance of conveyances of unused lots plaintiff had the right to require a charge for perpetual care and maintenance.

Defendant filed a motion to dismiss paragraph 13 of said petition. The grounds stated were that there was no real and substantial controversy between the parties as to the matters alleged therein for the reason that said matters had been agreed upon by the parties and ruled upon by the court in the prior action and was for that reason beyond the jurisdiction of the Court. This motion was sustained in all respects except as to subsections D, E and F of paragraph 13. Defendants thereafter filed an answer pleading, (1) res judicata and (2) lack of justiciable controversy. Trial resulted in a judgment for plaintiff as to the issues tried. Defendants have appealed.

The parts of paragraph 13 which presented the issues at the trial are as follows:

“13. As grantee of the cemetery it is necessary that the Court rule upon and. define the following proposition in order for this matter to be brought to a conclusion, to wit:
⅜ ⅜ ⅝ ⅜ ⅝ ⅝
“(d) the proposition as to whether or not this plaintiff is restricted in the issuance of conveyance of unused lots in so far as they require a charge for perpetual care and maintenance.
“(e) the proposition as to whether or not these defendants or others on their behalf can use the cemetery proper for a roadway for construction purposes for an adjoining cemetery.
“(f) the proposition as to whether or not these defendants as organizers of Luebbering Citizens Cemetery Association have the right to post advertisement on an immediately adjoining cemetery to the east of the Fairview Cemetery as 'the new addition,’ which is misleading and contrary to the facts as the Fairview Church, its trustees, Fairview Cemetery Perpetual Care Assn., Inc., and authorities have never authorized any new addition to the Fairview Church Cemetery.”

The prior suit which appellants claim to be res judicata was instituted by defendants against plaintiff and resulted in the following consent decree:

“Now on this day the above cause coming on for hearing, and the parties hereto having filed their stipulation for a Consent Judgment in the above cause in this Court, and the Court being fully advised in the premises, it is therefore ordered, adjudged, and decreed by the Court.
“1. That from and after the date of this Order the above named defendants shall not interfere with the real interest and burial rights that the plaintiffs herein and their heirs have in and to those portions of Fairview Cemetery as described in Volume 35, Page 60 and Volume 100, Page 448 of the land records of the County of Franklin, State of Missouri, on file in the Recorder’s Office of Franklin County, at Union, Missouri.
“2. That from and after the date of this Order, the defendant is prohibited from taking back and reassigning any grave space in the above portions of Fairview Cemetery, in which the Plaintiffs and their heirs, have a real interest and the defendant is prohibited from imposing any conditions whatsoever upon the plaintiffs and their heirs for their nonparticipation in either the annual donations or perpetual care plans of Fair-view Cemetery as outlined in the by-laws of the Fairview Cemetery Perpetual Care Association, a Corporation, but nothing in this Order shall prevent the defendants from soliciting voluntary participation in either the donation or perpetual care plans, but the defendants are not to use duress or impose penalties for the refusal of the plaintiffs and their heirs to participate in either of the aforesaid plans.
“3. That the defendants from and after the date of this Order are hereby enjoined and prohibited from selling the grave space in the unused portion of Fairview Cemetery as indicated Paragraph One above.
“4. That from and after the date of this Order the Plaintiffs and their heirs shall have an easement of ingress and egress over, on and along such portions of the above described cemetery as may be necessary for the Plaintiffs and their heirs in the maintenance and care for the respective grave spaces and the Defendant is hereby prohibited from any interference with the Plaintiffs and their heirs, in the reasonable performance of this private care of the said grave spaces.
“5. That from the ■ date of this Order the present and succeeding trustees of the Fairview Cemetery Perpetual Care Association, a Corporation and their successors and assigns shall be subject to and bound by this Order.”

Subsections E and F were disposed of by stipulation of the parties which stipulation was approved and ruled in accordance therewith. As to subsection D the court ruled that plaintiff had the right to provide for a charge for perpetual care and maintenance on the unused lots left in said cemetery that have not been claimed by any person or persons.

Plaintiff is a not for profit corporation organized under Missouri law. Subsequent to its incorporation and on March 15, 1962, plaintiff acquired by deed a parcel of land in Franklin County known as Fairview Church Cemetery. Said conveyance was for the purpose of providing an orderly use of said cemetery, and to provide perpetual care and maintenance of said property. By its constitution and by-laws it is provided that grave spaces in the cemetery shall remain free and may not be sold. This is in accordance with the policy in effect since the cemetery was established. Since taking over the cemetery plaintiff has never assessed lot owners for any sum for perpetual care but has solicited and received donations from many of them; the amount being $25.00 for each grave space. At the time of the hearing below the total donations for that purpose amounted to $4,080.-00 which sum was invested in Baptist Church Bonds drawing six percent interest. The interest collected on said bonds has been the only amounts expended for the care and maintenance of the cemetery. If a lot owner does not donate the sum solicited plaintiff will maintain the lot without charge. Lot owners are not prohibited from taking care of the lots which they own since plaintiff has never taken over the exclusive control and management of lots now in use or those claimed by any person. There are unused lots in said cemetery that have not been claimed by anyone. These are the lots which plaintiff seeks to impose a charge for perpetual care when conveyed.

Appellants’ first point is that since the present action was brought several months after the judgment in the prior action became final, the Court was without jurisdiction to change or modify said prior judgment. The prior judgment was rendered May 7, 1963, and became final 30 days thereafter. The present action was filed January 27, 1964.

We agree with appellant that the trial court could not, in a declaratory judgment action, amend or modify a prior judgment where such judgment is regular on its face, or test its validity in any action where no equitable grounds for such relief are asserted. But that is not what occurred in the present action. In trying the issues raised by paragraph 13d the court was not called upon to amend or modify the prior judgment, or to test its validity. There was a real and substantial controversy between the parties over the effect of the consent judgment upon their rights. This issue related to plaintiff’s right to exact a charge for perpetual care and maintenance on lots not claimed by others upon conveyance of said lots for burial purposes. The court decided the issue in favor of plaintiff. We believe the court’s decision was correct. The issue was not settled by the prior judgment. Hence the contention that the court erred in the respects claimed is without merit.

Appellants’ second point is that the court erred in setting aside the prior judgment since it was not shown there was irregularity patent upon the face of the record in that case. There is no merit to this contention. The trial court did not set aside the prior judgment. By its decree it resolved a controversy between the parties not settled by the prior judgment.

The judgment appealed from is affirmed.

RUDDY and WOLFE, JJ., concur.


author: TITUS, Judge.

text:
    STATE of Missouri ex rel. Lila BURKE, Relatrix, v. Hon. William R. ROSS, Camden County Probate Judge, Respondent.
    No. 8688.
    Springfield Court of Appeals, Missouri.
    Oct. 11, 1967.

      J. W. Grossenheider, Lebanon, for rela-trix.
    Richard E. Feutz, Camdenton, for respondent.
   TITUS, Judge.

Relatrix filed her petition for writ of mandamus in the Circuit Court of Camden County to compel the respondent probate judge to vacate an order appointing Richard E. Feutz administrator ad litem of the estate of James M. Lane, deceased, and to appoint her in his stead. This appeal followed the court’s denial of a request the alternative writ be made peremptory.

Distributees of decedent’s estate are his seventy-eight year old sister (the relatrix) and three children of a deceased brother. V.A.M.S. § 473.117, subd. 1, disqualified the non-resident children from serving as administrators. We are here principally concerned with the following statutes, the pertinent parts of which provide:

V.A.M.S. § 473.110. “* * * 2. Letters of administration shall be granted to the following persons if otherwise qualified: * * * (2) To one or more of those who are entitled to distribution of the estate * * * ”
V.A.M.S. § 473.113. “Letters may be granted at any time to any person deemed suitable, if the persons entitled to preference file their renunciation thereof * * *»
V.A.M.S. § 473.423. “An * * * administrator may establish a claim against his * * * intestate * * * he shall file his claim and other papers, and the court shall appoint some suitable person as administrator ad litem to appear and manage the defense.”

On March 24, 1966, relatrix filed her written renunciation to serve as administra-trix because “due to ill health I feel unable to serve.” As she had requested, the probate court appointed her son administrator and on September 28, 1966, he filed his claim against the estate for money allegedly due “on account of care, maintenance and services furnished the deceased during his lifetime.” At the time the claim was made, the administrator also filed a petition for the appointment of an administrator ad litem. This was not acted upon until after relatrix filed her own petition on February 20, 1967, requesting she be appointed administratrix ad litem. Thereafter, respondent wrote the attorney for relatrix “the court feels that a disinterested person should be appointed * * * therefore [I] have made an order appointing Richard E. Feutz, attorney, as the administrator ad li-tem for the purposes of this litigation.” The petition for writ of mandamus was thereafter filed.

The only point relied on in the brief of relatrix is “The court erred in •denying Relator a peremptory writ of mandamus because under the law and the evidence Respondent should have sustained the application for appointment as admin-istratrix ad litem filed by Relator which he failed to do, so that a peremptory writ of mandamus should have been granted.” This statement constitutes an unadulterated infraction of V.A.M.R. 83.05(a) (3) and V.A.M.R. 83.05(e) by wholly omitting any attempt to state “wherein and why” the court erred in denying the peremptory writ and what evidence and law existed to require respondent to appoint relatrix admin-istratrix ad litem. Davis v. City of Independence, Mo. (banc), 404 S.W.2d 718, 724-725(9); Chance v. Atchison, Topeka and Santa Fe Railway Co., Mo., 389 S.W.2d 774, 778. We would be justified in ruling the point relied on in the brief of relatrix presents nothing for appellate review. Nevertheless, to attend to the disposition of the case on its merits (V.A.M.R. 83.24) we will indulge the violation and seek the intended assertions the best we can decipher.

The contention of relatrix seems narrowed to the averment she should be afforded the same priority to appointment as administratrix ad litem under V.A.M.S. § 473.423 as she had to letters of administration under V.A.M.S. § 473.110 and respondent had no discretion but to appoint her administratrix ad litem. Relatrix further says her “prior renunciation [to serve as administratrix] does not bar a subsequent appointment.”

Administrators have been categorized as being “general” or “special.” A “general administrator” is one concerned with the main and over-all usual duties of administering and distributing the assets of the estate. He is the concern of V.A.M. S. § 473.110, supra, and also of V.A.M.S. § 473.147 which provides for the appointment of a successor to an administrator who has died, resigned or been removed, and to situations where the first administrator has been discharged and the subsequent discovery of unadministered assets requires the appointment of another. A “special administrator” is one needed to perform a particular or distinctive function because of a unique, uncommon or exceptional development. For example: V.A. M.S. § 473.133 (administrator to serve during the minority of or in the absence of an executor named in a will) ; V.A.M.S. § 473.137 (administrator appointed for the duration of a will contest); and V.A.M.S. § 473.423 supra (administrator ad litem to “appear and manage the defense” of a claim filed by the general administrator or executor). The appointment of a “general” type of successor administrator under V.A.M.S. § 473.147 goes “to whom administration could [or would] have been granted if the original letters had not been obtained.” The “special” administrator under V.A.M.S. § 473.133 is merely “some other person,” under V.A.M.S. § 473.137 it is “some disinterested person or corporation,” and under V.A.M.S. § 473.423 he is “some suitable person,” all without reference to any of the priorities noted in V.A.M.S. § 473.110. Thus we see a statutory pattern that guides the probate judge to the priority statute in appointing general administrators but which makes no such direction in the selection of special administrators. Almost one hundred years ago when a will contest arose our Supreme Court was confronted with a widow’s claim that she was entitled to preference in the appointment of ad-ministratrix pendente lite because of the priority given her in a statute comparable to V.A.M.S. § 473.110. In Lamb, Adm’r v. Helm, Adm’x, 56 Mo. 420, 433, the court stated the appointment of “such special administrators * * * were not contemplated by, or included in, the provisions” of the statute providing for priorities in the appointment of general administrators. To like effect: “Statutory provisions as to preferences, which are applicable in cases of general administration do not govern the appointment of a special or temporary administrator pendente lite, nor do they prevent the Court from exercising its discretion to appoint an impartial administrator.” 31 Am.Jur.2d, Executors and Administrators, § 651, p. 275. “In the -absence of statute the selection of a temporary or special administrator is not limited to those entitled to ordinary administration, but rests in the discretion of the court.” 34 C.J.S. Executors and Administrators § 1035d, pp. 1301-1302. In our opinion relatrix had no priority to the appointment as administratrix ad litem and the probate court, in its discretion, was at liberty to appoint “some suitable person” without regard to the priorities enumerated in V.A.M.S. § 473.110.

We are further persuaded relatrix cannot properly insist upon priority for while the renunciation of her right to administer the estate “was not a disqualification to act as such * * * [it] was a renunciation of her right of preference or priority in the granting of letters of administration * * * Having renounced her right of priority, she could not have prevented the grant of letters thereafter to another by an exercise of the right of preference or priority which she had waived by her renunciation.” Ross v. Pitcairn, Mo., 179 S.W.2d 35, 38(9), 153 A.L.R. 215, 220. “[T]he better doctrine is that, when the privilege [priority] once is renounced or waived, it is lost forever and cannot be recalled.” State ex rel. Burns v. Romjue, 136 Mo.App. 650, 658(2), 118 S.W. 1188, 1191(1); State ex rel. Ambercrombie v. Holtcamp, 267 Mo. 412, 422-423, 185 S.W. 201, 204; 4 Missouri Practice-Probate Law and Practice by Almon H. Maus, § 658, pp. 16-17.

“[M]andamus will not lie to control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way,” (O’Bryan v. Superior Court of Los Angeles County, 18 Cal.2d 490, 116 P.2d 49, 53 [7] 136 A.L.R. 595) and the one seeking the writ must prove he has a clear and specific right to the remedy, for mandamus will not issue in doubtful cases. State ex rel. Christian v. Lawry, Mo.App., 405 S.W.2d 729, 731(7); State ex rel. Great Lakes Pipe Line Company v. Hendrickson, Mo., 393 S.W.2d 481, 483(1); State ex rel. Reis v. Nangle, Mo.App., 349 S.W.2d 508, 511(1, 2). This is not a case where the probate court’s discretion can be exercised in only one way and the charge made that if respondent had any discretion in the matter he abused it has no evidentiary support and is simply couched in a conclusion. The circuit court was correct in refusing to make the alternative writ peremptory and its judgment is hereby affirmed.

STONE, P. J., and HOGAN, J., concur.


text:
    Janet Lee TERRY, a Minor, by Robert Terry, Her Next Friend, Plaintiff-Respondent, v. Edward G. SWEENEY, Defendant-Appellant.
    No. 32579.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 17, 1967.

      Morris, Wuestling & James, Hoffman & Shostak, St. Louis, for defendant-appellant.
    Rooney, Webbe & Davidson, John J. Schlueter, Russell N. MacLeod, St. Louis, for plaintiff-respondent.
   ANDERSON, Presiding Judge.

Plaintiff, Janet Lee Terry, a minor, by and through her next friend, Robert Terry, brought this- suit against defendant, Edward G. Sweeney, for damages for personal injuries alleged to have been caused by defendant’s negligence. The trial below resulted in a verdict for plaintiff in the sum of $5,000.00. Defendant has appealed from the judgment entered on said verdict.

Plaintiff’s petition alleged that defendant was the owner of premises known and numbered as 3024 Minnesota Avenue, St. Louis, Missouri; that said premises were rented to various tenants, and in connection therewith defendant furnished, controlled and maintained a backyard which was used in common by all the tenants; that on August 18, 1964, plaintiff lived with her parents in said premises, and on said date defendant suffered, permitted and allowed a bed and springs to remain in the backyard of said premises, and as a result of defendant’s carelessness and negligence, plaintiff was caused to be seriously and permanently injured. The act of negligence assigned which was submitted is as follows:

“Defendant negligently and carelessly failed and omitted to remove said bed and springs from said yard when he knew or by the exercise of ordinary care should have known of the yard’s hazardous and unsafe condition and the possibility of injury to plaintiff.”

The petition then sets forth the injuries alleged to have been sustained by plaintiff as a result of defendant’s said negligence. The prayer of the petition was for $25,000.-00 and costs.

Defendant’s answer was a general denial.

On August 18, 1964, defendant owned a four family dwelling at 3024 Minnesota Avenue in St. Louis. There was a backyard immediately to the rear of the building where children played every day during the summer months. One of the apartments in the building was occupied by Mrs. Marion Benka and her family. Mrs. Benka was hired by defendant to manage the property for him. It was her duty as manager to collect the rent, clean the apartments whenever a tenant moved, keep debris and hazards out of the yard and do general maintenance work around the building. For this work Mrs. Benka was paid two dollars every week and five dollars at the end of each month.

One of the apartments was occupied by the Terry family, which consisted of Robert Terry, the father, his wife, Shirley Ann, and their four children, one of whom was plaintiff, age six.

Mrs. Benka owned a rollaway bed which she use/d in her apartment. Sometime prior to August 17, 1964, she was given another bed that was in better condition than the one she had been using. The wires on the old bed were coming loose, and it was rusty. Mrs. Benka testified: “* * * If you didn’t get the legs pulled out far enough, if you would step on one end of it, it would fold up, and I had occasion for it to fall down on myself when I sat on the end of it, it would fold under, and I was afraid my children would get hurt on it during the night sleeping on it, that it would fold up. It had some casters off it that damaged the floor.”

About noon on August 17, 1964, Mrs. Benka removed the bed from her apartment. She intended to store it in the basement of the apartment building but was unable to do so because the basement steps were full of tools used in caring for the yard. She then folded the bed and placed it underneath the steps leading up to the back door of the house. The bed was not covered when it was placed there. Mrs. Benka testified that after placing the bed under the steps she told the children not to get on the bed, because they could get a foot or hand caught in it or cut their hands on the spring; that it wasn’t a toy and was not to be played with. She stated that when the children played they used the underneath part of the steps as a hiding place.

The following morning, August 18, 1964, Mrs. Benka left her home to be interviewed for a job. When she left the bed was still under the steps. She returned home at noon. When she arrived, the children were playing in the backyard. There were eight of them including plaintiff, Janet Lee Terry, who was then six years old. The children asked Mrs. Benka if they could play under the steps. She stated the children wanted to play “hospital.” She told them they could play under the steps but not to get on the bed. She then went upstairs to Mrs. Terry’s apartment to let Mrs. Terry know she had returned. Mrs. Terry had been keeping her children that morning. Mrs. Terry was making coffee at the time and invited Mrs. Benka to sit down, have a cup of coffee and tell her about her job. Mrs. Benka remained there with Mrs. Terry about a half hour when they heard loud screams. Mrs. Benka testified: “ * * * We both run to the door and then her son and Jerry Cole, met us at the back door, both of them talking at once, something about somebody getting hurt. We both went outside and there was Janet standing there holding her hand, screaming. I picked her hand up and looked at it and Shirley (Mrs. Terry) came over there and her hand was full of blood. I said, ‘Shirley, she’s been hurt.’ So she come and picked her up and tried to console her to stop her crying, then the kids finally got it out that she had her hand caught in the bed. * * * I looked at the bed, * * * I seen blood stains on the bed. I looked around the bed and there was a piece of paper there and I picked the end of her finger up on a piece of paper and I myself threw the finger in the trash.”

Randall Terry, a brother of Janet Terry, witnessed the accident. At the time he was going on nine years of age, and at the time of the trial was ten years old. He was called as a witness for plaintiff. Just prior to the accident, the children were playing doctors and nurses. The bed was under the stairs before they started playing. He and Jerry Cole took it out from under the steps. Then two of the children, Butchy Benka and Janet Terry got on the bed. The witness gave the following testimony with regard to the accident: “Q. * * * Did anything unusual happen after they got up on top of the bed? A. Yes, sir, the bed kind of tipped at the end. * * * the end of the bed kind of fell and the leg kind of folded up. Q. And did anything happen to Janet as a result of this bed falling? A. Yes, * * * her two fingers got caught in the folds of the bed ***.*** Her right hand. * * * Q. You didn’t see her fingers at that time? A. Yeah, I seen her fingers. Q. Where were her fingers ? A. It was caught between the leg and the bed. Q. * * * did anything happen to her fingers when they got caught in that bed? A. Yes, sir, the end of her fingers kind of tipped this part (indicating) just to the nail. * * * It cut this part (indicating) right here, just to the nail off and it was laying on the ground. * * * Q. What was the condition of that spring bed, Randy, before the accident happened? A. Well it was rusty * * * it had two rollers off and the springs were kind of broke, some springs were broke out, and if you didn’t have this bed sitting up properly it would tip over, the end would kind of tip over. * * * The end would kind of fold up if you didn’t have it set out all the way. Q. * * * Are you referring to the leg again, is that what you are referring to? A. Yes, sir. Q. That would tip under? A. Yes, sir, if it weren’t set up properly. Q. * * * And is that what happened? Did that leg tip when this accident happened? A. Yes, sir. Q. And then the bed, the spring part of the bed where she was lying, did that fall to the ground? A. One end of it did. Q. Do you know exactly where Janet’s fingers were caught? A. They were caught between the leg and the bottom of the bed.”

On cross examination the witness testified that before it was taken out from under the steps the bed was folded in a “U-shape that when he and Jerry Cole pulled it out from under the steps it was in a “U-shape that they let one side down and then the other.

Mrs. Terry took Janet to Cardinal Glen-non Hospital, where she remained until August 26, 1964, under the care of Dr. Francis Paletta, a plastic surgeon. Examination revealed injury to the right ring and middle fingers. The middle finger was lacerated and the distal fourth of the soft tissue of the ring finger had been amputated. A local anesthetic was administered and the wound on the middle finger was sutured. The ring finger was repaired with suturing, and since there was a loss of tissue in order to maintain as much of the length of the finger as possible it was stitched to the palm of the hand and allowed to grow on the palm of the hand. In that way skin and fatty tissue became attached to the finger from the palm of the hand. The finger remained in this position for about three or four weeks then cut loose and stitched up along the edge. The raw surface in the palm of the hand which resulted from this procedure was repaired by a graft of skin taken from the inner aspect of the arm. Prior to stitching the finger to the palm of the hand, a Kirschner wire was inserted in the tip of the finger because it was fractured, and in order to stabilize the finger when attached to the palm of the hand. She was dismissed from the hospital September 14, 1964, at which time there was a well healed laceration of the middle finger and a well healed suture of the palmer flap at the tip of the ring finger.

Dr. Paletta saw plaintiff several times thereafter. His diagnosis was traumatic amputation of a portion of the distal phalanx of the right ring finger and a severe laceration of the right long finger, due to the accident of August 18, 1964. He stated that the injury produced pain, and that plaintiff would suffer future pain because of the lack of padding beneath the terminal portion of the nail on the right ring finger; that any type of work or play where she will press down directly on the tip of her finger will cause pain because of such insufficient padding. He also stated that the injury would be permanent; that her hand will never be the way it was before the accident ; that further surgical procedures, requiring five to ten days in the hospital, would be necessary to graft skin and fat to build up the finger more than she already has, commensurate with hand growth; that she has sustained a cosmetic loss; and that the finger is one quarter of an inch shorter than it was, but functional.

At the time of the occurrence, plaintiff was in the first grade at school. She lost four or five weeks from school but remained up with her class. She is left handed and eats with her left hand only. She rubs the palm of her right hand and the end of her finger over and over again. She had trouble eating, sleeping and playing with other children. After the accident for several nights she would wake up crying. According to her mother’s testimony, plaintiff is not using her right hand as before, she shows it to everybody and says, “Look at my hand. Look at my hand.” She is partial to her right hand, but can do the same things she did before the accident.

Defendant contends that the trial court erred in overruling his motion for a directed verdict at the close of the whole case because the evidence adduced failed to establish any basis for recovery by plaintiff against defendant. In support of this contention, it is urged there was no actionable negligence shown for the reason that the placing of the bed under the steps, if negligent, was not the proximate cause of plaintiff’s injuries; but that the efficient moving force which caused said injuries was the intervening act of plaintiff’s playmates in removing the bed from under the steps. It is further argued that the event was so extraordinary and unforeseeable that defendant’s negligence, if any, cannot be considered the proximate cause of plaintiff’s injuries. It is also urged that the bed was not a dangerous instrumentality, therefore, it was not shown that defendant violated his duty to maintain the backyard in a reasonably safe condition for use by his tenants and others by failing to remove same.

Defendant has mistakenly assumed that the negligence submitted was the placing of the bed in the yard by defendant. The actual submission was failure to use ordinary care to remedy a hazardous condition due to the fact that the bed was dangerous to children playing on or about said bed because of the likelihood of injury by reason of the shearing effect of the movement of the metal parts of said bed. This is important for the reason that the bed was placed under the steps by Mrs. Benka, not as agent of defendant, but for her own convenience, while her failure to remove the bed, if dangerous to children in the respects claimed by plaintiff, was a breach of duty by defendant, since the evidence clearly shows that Mrs. Benka was defendant’s manager charged with the duty to keep the yard free from any hazardous condition. Her failure in that respect would therefore be chargeable to defendant.

The law governing the liability of lessors to tenants, and others lawfully upon the land with the consent of the lessee, for injuries sustained on that part of the premises over which the lessor retains control is clearly set forth in Restatement of the Law 2d, Torts 2d § 360, p. 250, as follows:

“A possessor of land who leases a part thereof and retains in his own control any part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.
“Comment:
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
“(d) The rule stated in this Section applies not only to the hall, stairs, elevators, and other approaches to the part of the land leased to the lessee as a flat, office, or room in a tenement or boardinghouse, but also to such other parts of the land or building to the use of which by the express or implied terms of the lease the lessee is entitled, usually in common with other lessees, such as a bathroom in a boardinghouse and the roof or yard of a tenement building or apartment house.”

The plaintiff’s evidence shows that the children of the tenants in defendant’s apartment house used the backyard, including the area beneath the steps, as a playground. This fact was known to Mrs. Benka, defendant’s agent. Also, Mrs. Benka testified she had given the children express permission to play under the steps the morning the accident happened. Plaintiff was, therefore, lawfully on the premises at the time she was injured. Her right to be there was an incident of the contract of letting between her parents and defendant, and by express permission. Reek v. Lutz, 90 R.I. 340, 158 A.2d 145. Therefore defendant was under a duty to exercise ordinary care to keep the premises in a reasonably safe condition for the use by plaintiff and the other children residing in said apartment building. Green v. Kahn, Mo., 391 S.W.2d 269; Kemp v. Doe Run Lead Co., Mo.App., 57 S.W.2d 758; Peterson v. Brune, Mo., 273 S.W.2d 278; Thompson v. Paseo Manor South, Inc., Mo.App., 331 S.W.2d 1.

Was the bed a dangerous instrumentality? Mrs. Benka testified that the bed spring was broken and the brad that held the bar which connected the short leg to the rounded leg was loose, so that if the legs were not pulled out far enough the legs would fold under when the bed was sat upon. She further testified she was fearful that her children would get hurt on it during the night when sleeping on it. Like testimony was given by her son who also testified for plaintiff. It thus appears that the bed had some infirmities which a jury could reasonably find rendered it dangerous when used by one not familiar with its condition or when not set up properly. In determining the matter the age of the child should be taken into accoúnt. What could be considered dangerous to children due to their childish ignorance, indiscretions and impulses might not be dangerous to an adult; and in such a situation ordinary care would require more vigilance and caution than might be sufficient with respect to an adult. Bronson v. Kansas City, Mo.App., 323 S.W.2d 526; Hammontree v. Edison Bros. Stores, Mo.App., 270 S.W.2d 117; Kemp v. Doe Run Lead Co., Mo.App., 57 S.W.2d 758; 65 C.J.S. Negligence § 12(b), p. 588.

Defendant asserts that the facts in evidence fail to show plaintiff’s injuries to be the proximate result of the breach of any duty owed her by defendant. The reasons assigned in support of said contention are, (a) the event was unforeseeable and, (b) the removing of the bed and unfolding it by the two boys was an intervening cause of plaintiff’s injuries for which defendant could not be held liable.

We agree with the proposition that negligence cannot be predicated upon a failure to take precautionary measures to prevent an injury to a person occupying the status plaintiff did when such injury could not have been reasonably anticipated. However, it is unnecessary to show that the party charged should have anticipated the exact injury sustained, or the exact manner of its occurrence. It is sufficient to show that the defendant knew or should have known there was an appreciable danger that some injury would likely result if precautionary measures were not taken. The rule to be applied is stated in Zuber v. Clarkson Construction Co., 363 Mo. 352, 251 S.W.2d 52, l. c. 55, as follows:

“Relating to those dangers to be reasonably anticipated—if there is some probability or likelihood, not a mere possibility, of harm sufficiently serious that ordinary men would take precautions to avoid it, then the failure to do so is negligence. While the'likelihood of a future happening is the test of a duty to anticipate, this does not mean the chances in favor of the happening must exceed those against it. The test is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it. * * See also Phillips v. Stockman, Mo.App., 351 S.W.2d 464.

Whether or not the occurrence in controversy was so extraordinary and unusual that defendant should have expected or foreseen it depends upon the facts of which defendant was aware, as shown by the evidence. It appears that the bed contained defective parts. Mrs. Benka, defendant’s manager, knew of this condition. She also knew that if the bed was not set up properly it would collapse when sat upon. She was aware of the fact that the children residing in the apartment building used the backyard as a playground. She knew that on the morning of the accident these children were playing hospital; and that she gave them permission to play under the steps. Plaintiff was a small child six years old, and was lawfully on the premises. It is common knowledge that the acts of a child of her age are wholly unpredictable and that they are not fully appreciative of dangers likely to be encountered. The same is true of the other children who were with her at play that morning. Children the ages of those playing hospital have vivid imaginations when engaged in play. In playing hospital it would reasonably be expected they would be attracted to the bed as a convenience to the fulfillment of the little drama in which they were engaged. Under the foregoing facts it could reasonably be found that defendant’s manager should have foreseen that plaintiff and the other children would likely make use of the bed which was readily accessible and that some accident and injury might result in its use. Our ruling is based upon the law announced in the folllowing cases: Hammontree v. Edison Bros. Stores, Mo.App., 270 S.W.2d 117; Berry v. Emery, Bird, Thayer Dry Goods Co., 357 Mo. 808, 211 S.W.2d 35; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267; Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820; Grimes v. Standard Oil Co., Mo.App., 370 S.W.2d 627; Louisville & N. R. Co. v. Beatrice Foods Co., Mo.App., 250 S.W.2d 825.

Since we hold that the element of foreseeability was a jury question we are compelled to rule against appellant’s contention that as a matter of law the act of boys in removing the bed from beneath the steps was a new and independent act which so interrupted the chain of events as to become the sole proximate cause of the plaintiff’s injuries. Under the decisions it has been held that if some injury can be reasonably anticipated or reasonably probable as a result of a defendant’s negligence, then the added act of a third person does not break the chain of causation and defendant is liable. In such event the act of the third person is merely a concurring cause. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820. The matter was for the jury to determine from all the attending circumstances in evidence. McWhorter v. Dahl Chevrolet Co., 229 Mo.App. 1090, 88 S.W.2d 240. In our judgment the jury reasonably could have found that plaintiff’s injuries would not have occurred if it had not been for the failure of defendant to remove the bed to a place where it would not have been accessible to the children at the time in question. Grimes v. Standard Oil Co., Mo.App., 370 S.W.2d 627.

Plaintiff offered and the Court gave the following verdict directing instruction:

“Your verdict must be for the plaintiff if you believe:
“First, defendant employed Marion Benka to manage defendant’s apartment and to act for defendant in the care and maintenance of the backyard of said apartment, and
“Second, said backyard was in the possession of the defendant and was customarily used for play by children of the tenants of defendant (including plaintiff) with defendant’s knowledge and consent, and
“Third, there was a rollaway bed in defendant’s backyard which was dangerous to children playing on or about said bed because of the likelihood of injury by reason of the shearing effect of the movement of the metal parts thereof when such bed was changed or moved from a flat surface position toward a folded or rollaway position and as a result said bed and said backyard were not reasonably safe, and
“Fourth, plaintiff, while playing with other children in, on and about said bed in said backyard, sustained cutting injuries to the fingers of her hand by reason of a shearing movement of the metal parts of said bed, and
“Fifth, defendant, through his employee, Marion Benka, acting within the scope and course of her employment, knew, or by using ordinary care should have known, of the existence of the condition referred to in paragraph Third, and
“Sixth, defendant, by and through his employee, Marion Benka, failed to use ordinary care to remedy the condition by removing the bed from the backyard, and
“Seventh, as a direct result of such failure plaintiff was injured. M.A.I. 22.05”

Defendant’s objection to the instruction is that it violates Civil Rule 70.01, V.A.M.R., in that it is not simple, brief, impartial nor free from argument, and requires findings of detailed evidentiary facts. It is clear that in drafting the instruction, counsel attempted to follow M.A.I. 22.05, with modifications necessary to fairly submit the issues. The instruction could have been shortened by eliminating the first and second requirements, for it is conceded that Marion Benka was defendant’s manager charged with the duty of maintaining the backyard, and that defendant retained control of the backyard. It is also conceded that the children used the backyard with defendant’s consent. But requiring findings on these matters in no way prejudiced defendant. Nor do we find merit in the other complaints above mentioned. Defendant merely makes a blanket charge with respect to said complaints, and specifies no particulars whatever.

Defendant’s next complaint is that the instruction fails to properly submit the issue of agency, in that it fails to define the “scope of employment.” In our view no definition was necessary. Furthermore the evidence of both parties was that Mrs. Benka did have the authority and the duty to keep the premises in order, and this would entail the duty to remove therefrom any dangerous object. Agency as it relates to the negligence charged was not a contested issue. We must rule that the point urged is without merit.

Defendant’s final point is that the verdict of $5,000.00 is excessive. We have carefully examined the evidence relating to plaintiff’s injuries and have concluded that such is not the case.

The judgment is affirmed.

RUDDY and WOLFE, JJ., concur.


author: DOERNER, Commissioner.

text:
    Molly KRIEBER, Plaintiff-Respondent, v. Vernon KRIEBER, Defendant-Appellant.
    No. 32739.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.
    Rehearing Denied Oct. 17, 1967.

      Sherwood R. Volkman, St. Louis, for defendant-appellant.
    Frank E. Doyle, Charles F. Hill, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This appeal by defendant is from a judgment and decree awarding plaintiff a divorce and alimony in gross of $5500, entered in the absence of defendant and his counsel.

The record discloses that plaintiff instituted her suit in the Circuit Court of St. Louis County on June 29, 1965, alleging in her petition various indignities as the basis of her claim for relief. Defendant, then represented by other counsel, filed an answer in which he admitted the marriage but denied all allegations concerning plaintiff’s claimed grounds for a divorce. Trial was had on March 7, 1966 at which plaintiff was the sole witness. Defendant was not present in person but was represented by counsel. During the course of plaintiff’s testimony she identified and there was introduced in evidence a written stipulation regarding a property settlement which the court was asked to approve and incorporate in any decree granted plaintiff. While the stipulation has not been included in the transcript nor filed here as an exhibit plaintiff’s testimony on direct and cross-examination shows that as part of the agreement defendant was to pay plaintiff $2500 in cash and to transfer to her his interest in a house trailer, provided that the finance company which held a chattel mortgage on the trailer released defendant from all responsibility therefor. Defendant’s counsel requested the court not to enter a decree until the finance company formally released defendant, and in compliance with that request the court took the case under submission on the understanding that defendant’s counsel would advise the court when the release was received.

The transcript shows that on April 1, 1966, on the application of plaintiff, the case was placed on the docket for further hearing on April 8, 1966, and a subpoena ordered to issue to be served on defendant. The case was thereafter twice continued, and in the interim defendant’s original counsel withdrew and Sherwood R. Volk-man entered his appearance as attorney for defendant. The transcript also shows that on the application of plaintiff made on June 8, 1966, the cause was docketed for further hearing on June 17, 1966, and that Mr. Volkman was notified of the fact by a letter sent by plaintiff’s counsel, which was received by defendant’s counsel on or about June 10, 1966.

Plaintiff and her counsel appeared at the hearing set on June 17, 1966, but neither defendant nor his counsel appeared. Plaintiff testified that although the finance company had agreed to release defendant he had failed to fulfill his agreement to transfer the house trailer to her. She also related, in brief, that she had owned another trailer at the time of the marriage which had been traded in on the new one plaintiff and defendant purchased, the amount allowed in trade having been $3515; that after the trade in allowance the time balance due on the new trailer was $5411; that defendant had made only two monthly payments of $65 each after they separated, and that thereafter she had made ten such payments; and that at the time of trial the new trailer was worth from $5500 to $6500, with about $3000 remaining due the finance company. Plaintiff’s counsel expressed the opinion that the court could not award plaintiff the defendant’s interest in the trailer as part of her alimony in gross, and requested the court to allow plaintiff the $2500 originally agreed upon plus $3000 in lieu of defendant’s one-half interest in the trailer, or a total of $5500. After questioning plaintiff regarding the facts surrounding the purchase and the value of the trailer the court entered the judgment and decree awarding plaintiff a divorce, alimony in gross of $5500, and $300 as additional attorney’s fees.

On June 28, 1966, defendant filed his motion for a new trial (not set forth in the transcript) and an amended motion on July 2, 1966. In the latter defendant alleged that his counsel, Mr. Volkman, had been engaged in the trial, of a case in the City of St. Louis at the time of the hearing on June 17, 1966, and that plaintiff’s counsel had been advised on June 16, 1966 that Mr. Volkman would be so engaged. It was further alleged that “defendant’s counsel was led to believe that a continuance would be granted in this matter on this day,” but no explanation was set forth in the motion as to how or why defendant’s counsel was allegedly led to entertain that belief. Attached to the motion was the affidavit of Mr. Volkman in which he swore:

“Sherwood R. Volkijmn, being duly sworn, states upon his oath: that the deponent was engaged in trial in Division 14 of the Circuit Court, City of St. Louis on June 17, 1966, and that by and through his secretary, he notified Frank E. Doyle, attorney for the plaintiff, of this fact on June 16, 1966, and requested a continuance of this matter until the deponent was finished with the trial of the matter in the City of St. Louis Circuit Court.”

At the hearing on defendant’s motion on September 2, 1966, defendant’s only effort to support and substantiate his motion consisted of calling Mr. Doyle, plaintiff’s counsel, to the stand. In answer to defendant’s questions Mr. Doyle testified that a lady had telephoned him on June 16, 1966, identified herself as Mr. Volkman’s secretary, and advised him that Mr. Volk-man couldn’t be at the hearing the next day because he had to be in St. Louis on a motion in another case. Mr. Doyle was asked whether he had agreed to pass the case and emphatically denied that he had done so. He was also asked whether he had advised the court of the message given him regarding Mr. Volkman’s presence in another court and his reply was that he had so informed the court. No other evidence was offered by defendant. At the conclusion of Mr. Doyle’s testimony a colloquy occurred between the court and counsel during which defendant’s counsel protested that by the original stipulation defendant had agreed to pay, only $2500 alimony in gross. The court pointed out that the stipulation had never materialized and was not binding because defendant had failed to fulfill his agreement to assign his interest in the trailer to plaintiff, and expressed the opinion that he did not consider the allowance of $5500 for alimony in gross to be excessive. Plaintiff’s counsel then stated that if defendant would transfer his interest in the trailer to plaintiff she would give him credit for $3000 on the judgment and he would then have to pay only $2500 in cash. Defendant’s counsel made no answer to plaintiff’s offer. The court overruled defendant’s motion for a new trial and this appeal followed in due course.

Defendant’s only complaint concerns that part of the judgment and decree awarding plaintiff $5500 as alimony in gross. He urges that the judgment should be reversed because it was entered in violation of, “ * * * the rule that an order rendered without notice to the party, or his counsel, and in their absence of them is error.” (Emphasis defendant’s). Defendant cites Luedde v. Luedde, 240 Mo.App. 69, 211 S.W.2d 513; Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387; and Gladden et al. v. City of Kansas City, Mo., 411 S.W.2d 228, but the principle actually announced in those cases is far different than defendant’s version of the rule. As stated in Bindley (358 Mo. 31, 213 S.W.2d 387, 391) and reiterated in Gladden it is that, “ * * Notice and a hearing, or an opportunity to be heard, have long been considered essential to due process, to a decision on the merits of a cause and to the deprivation of rights and property. * * * ” Defendant’s counsel conceded that he received a notice that the hearing would be held. It follows that defendant and his counsel had an opportunity to appear at the hearing and to be heard. Neither did so. Defendant counsel’s message orally conveyed to the court by Mr. Doyle was not an application for a continuance within the meaning of Section 510.090, RSMo 1959, V.A.M.S. Savings Finance Corp v. Blair, Mo.App., 280 S.W.2d 675; McGinley v. McGinley, Mo.App., 170 S.W.2d 938. But even if it was so considered we could not, upon the record before us, convict the trial court of reversible error for denial of the request. For the granting of a continuance rests largely in the discretion of the trial court, Carr v. Carr, Mo.App., 308 S.W.2d 357; the fact that defendant’s counsel may have been engaged elsewhere did not, in and of itself, compel a continuance, Savings Finance Corp. v. Blair, supra; and while the discretion exercised by the court is judicial in nature and reviewable on appeal every intendment is in favor of the court’s ruling. Carr v. Carr, supra; Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227.

Nor can we convict the trial court of reversible error in refusing to set aside the judgment and decree. The action of a trial court in sustaining or overruling a motion to set aside a default judgment is likewise generally within the trial court’s sound judicial discretion. Gorzel v. Orlamander, Mo., 352 S.W.2d 675. It has long been the rule that to warrant the vacation of a default judgment a defendant must show a good and sufficient reason for his default and that he has a meritorious defense, Gorzel v. Orlamander, supra. Under the record in this case defendant failed to substantiate either of those elements. The fact that a party’s counsel was engaged in the trial of another case is, standing alone, no reason for setting aside a judgment where the party failed to appear for the trial. Savings Finance Corp. v. Blair, supra; Williams v. Barr, Mo.App., 61 S.W.2d 420; Schopp v. Continental Underwriters’ Company, Mo.App., 284 S.W. 808; Case v. Arky, Mo.App., 253 S.W. 484; Daugherty v. Lanning-Harris Coal & Grain Co., 218 Mo.App. 187, 265 S.W. 866. In his motion for a new trial defendant alleged that “defendant’s counsel was led to believe that a continuance would be granted in this matter * * That allegation did not prove itself and no testimony was introduced in support of it. Mr. Doyle testified that he had not agreed to a continuance and his testimony stands uncontroverted. Neither Mr. Volkman or his secretary took the stand or offered any explanation of how or why, as claimed, defendant’s counsel had been led to believe that a continuance would be granted. Nor is any support to be found in Mr. Volkman’s affidavit attached to the motion. All that he deposed therein is that plaintiff’s counsel was requested to agree to a continuance, but he did not swear that Mr. Doyle had agreed to do so.

Defendant likewise failed to allege or show that the award of alimony made to the plaintiff is unreasonable or excessive, or beyond his ability to pay. And as late as the hearing on his motion for a new trial plaintiff, in effect, offered him substantially the same terms to which he had previously agreed in the stipulation, but defendant chose to spurn them. In short-, defendant wholly failed to comply with either of the requirements which are a prerequisite to obtaining the relief prayed. Gorzel v. Orlamander, supra; Savings Finance Corp. v. Blair, supra.

The judgment is therefore affirmed.

PER CURIAM:

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

Accordingly, judgment affirmed.

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