text:
    Rosalle NOLAND, Plaintiff-Appellant, v. FARMERS INSURANCE EXCHANGE Defendant-Respondent.
    No. 24674.
    Kansas City Court of Appeals. Missouri.
    Feb. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1967.

      J. William Blackford, Blackford & Wil-helmsen, Kansas City, for appellant.
    Richard H. Heilbron, Heilbron & Powell, Kansas City, for respondent.
   SPERRY, Commissioner.

This case was transferred to us by the Supreme Court on jurisdictional grounds.

Plaintiff sued defendant insurance company for damages growing out of personal injuries suffered by her while seated in the automobile of defendant’s insured when it was struck in the rear by an uninsured motorist. From a summary judgment in favor of defendant, plaintiff appeals.

The facts are not in dispute. On the 31st day of May, 1963, plaintiff was a passenger in an automobile being operated by her brother-in-law, Cyrus J. Button. Button had given plaintiff an automobile and had taken her to Liberty, Missouri, to have it transferred to her name. The transfer was made and on the way back from Liberty to the home of plaintiff, Button suggested that she ride with him, when they came to the place where her car was located. Plaintiff remained in the car. The car carrying plaintiff then proceeded on down the road. The husband of plaintiff got in the other car and drove down the road following the Button car. At the intersection of 92 highway and the gravel road on which the cars were traveling, the Button car stopped. The husband did not. The car operated by plaintiff’s husband struck the car in which the plaintiff was riding, in the rear, injuring plaintiff. There was no insurance on the automobile being driven by the husband.

Mr. Button had insurance with the defendant. This policy carried the provision, in effect at the time of the accident, known as uninsured motorist coverage. Plaintiff made claim under it for personal injuries she suffered in the accident, and defendant denied the same. Plaintiff filed suit naming defendant and her husband, Charles Noland, as defendants. Defendant insurance company intervened as a defendant in Count I of plaintiff’s petition (directed against the husband alone), and moved to dismiss Count I. The motion was granted. Plaintiff appealed but the transcript was not furnished on time and the appeal was dismissed. Plaintiff, thereafter, filed her Amended Petition, naming defendant herein as sole defendant, claiming damages under the uninsured motorist clause, in the amount of $9,500.00.

Defendant admitted the facts of the accident as above stated; that Mr. Noland had no liability insurance; that Mr. Button had a policy of insurance with the defendant; that said policy included uninsured motorist coverage; that the driver of the automobile (the husband) was an uninsured motorist within the meaning of the policy; and denied that plaintiff was entitled to recover.

It is agreed by both parties that, from a time prior to May 31st, 1963, continuously to the present date, plaintiff and Mr. No-land have been lawfully married and have lived continuously together as husband and wife.

Defendant, in its brief, admits that plaintiff was an insured under its policy, that her husband was an “uninsured motorist” thereunder, and that plaintiff is entitled to coverage in this case if all requirements and conditions of that coverage were fulfilled. Defendant agreed, in its policy, as follows:

“To pay all sums determined to be payable as provided below, which the owner or operator of an uninsured motor vehicle would be legally responsible to pay as damages to the insured because of bodily injuries sustained by the insured caused by the accident, * * (Italics supplied) .

“A wife cannot maintain a civil action against her husband for a personal tort.” Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645, 646. (However, the court there held that such restriction did not affect her right to sue her husband’s employer for a tort committed against her by her husband while acting within the scope of his employment). In Brawner v. Brawner, Mo., 327 S.W.2d 808, 809, the court considered a tort action instituted by a husband against his wife, based on an automobile accident occurring during coverture. The court said (811) in the present state of the law, one spouse is not permitted to maintain this type of action against the other because of the common law rule of immunity, (citing sec. 1.010, R. S.Mo.1949, V.A.M.S.). The court held this to be true notwithstanding “the recent cases” of Hamilton v. Fulkerson, Mo., 285 S.W.2d 642, and Ennis v. Truhitte, Mo., 306 S.W.2d 549, relied on by plaintiff. In the Hamilton case the tort occurred prior to the marriage of the parties but was tried after the marriage had been consummated. It was said that, by statute, her pre-exist-ing cause of action was not extinguished by her marriage. In the Ennis case, the wife received personal injuries because of her husband’s “gross and reckless conduct” while operating an automobile in which the wife was a passenger. It was held that the rule prohibiting the wife from suing her husband for a personal tort committed by him against her should not be applied after the husband’s death. There was a strong dissent by two members of the court; but it is, nevertheless, the law under the facts there existing.

But the rule in Missouri is that neither spouse may maintain a civil suit against the other, during coverture, based on a tort occurring during coverture. Braw-ner v. Brawner, supra; Deatherage v. Deatherage, Mo. 1959, 328 S.W.2d 624, 625.

Plaintiff contends, in effect, that the rule mentioned in the Brawner and Deatherage cases has no application here because the suit is not against a spouse but is against an insurance corporation. Harking back to the policy provision which defines defendant’s liability, it is noted that defendant is only bound to pay sums which the owner or operator of the uninsured automobile would be legally responsible to pay as damages to the insured (plaintiff herein). Under the terms of the policy an insured (plaintiff) is not entitled to be paid by defendant any sums unless the uninsured motorist (plaintiff’s husband) is legally liable to pay plaintiff for said damages. The legal responsibility to pay may be determined and established by the rendition of a valid final judgment against the uninsured motorist. In Duprey v. Security Mut. Cas. Co., 43 Misc.2d 811, 252 N.Y.S.2d 375, 378-379, the court said:

“The very crux of any lawsuit is to determine whether the insured, in this instance, is legally responsible in damages. This cannot be determined until after a trial by a court of competent jurisdiction. The insured and, therefore his carrier, does not become legally obligated to pay any damages until a judgment is rendered against him.”

However, we do not hold that an insurance company may not he sued on an uninsured drivers clause until the actual tort feasor has been sued, served with process, and a judgment obtained against him. We held in Hill v. Seaboard Fire & Marine Insurance Co., Mo.App., 374 S.W.2d 606, 609, that plaintiff, in this kind of case, has the burden of proof, and that it is incumbent on her to prove: (1) that the other motorist in the accident was uninsured; (2) that the other motorist is legally liable to the insured; and, (3) the amount of such liability. We also held (611) that, under the policy there considered, which contained a clause similar to the clause here discussed, it was not required that a judgment be obtained against the uninsured motorist prior to the institution of suit by plaintiff. We also held that that action was upon contract, (not tort) and that the terms of the contract govern. We note that the contract there involved contained a clause providing for coverage in cases of “hit and run” motorists (whose identity remains unknown) and that the operator of the uninsured automobile was a stranger to plaintiff.

In Basore v. Allstate Insurance Co., Mo.App., 374 S.W.2d 626, in an opinion by Hunter, J., (who authored the opinion in the Hill case) we held that plaintiff, the wife of the insured motorist, was an insured under the terms of the policy, and that she was not required to obtain a judgment against a hit and run driver in order to establish her right to recover on the policy. Plaintiff relies on this decision as supporting her position here; but the facts are not the same. The uninsured driver in that case was an unidentified person, not her husband ; and he was legally responsible to her for his tort, if he could have been identified.

Under the conditions stated in the insurance contract, as presented .in the ■briefs of the parties, we hold that the terms stated therein, upon which defendant must pay, are not unlawful or ambiguous and that, as in other such clauses of the policy, they are binding upon both plaintiff and defendant; (Kisling v. M.F.A. Mutual Insurance Co., Mo.App., 399 S.W.2d 245, 252-253) and that, since the driver of the uninsured automobile was plaintiff’s husband, he was not legally responsible or liable to pay her any damages. That being so, defendant is not liable in this case.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

The above opinion of SPERRY, C., is adopted as the opinion of the court. All concur.


source: Caselaw Access Project

author: CLEMENS, Commissioner.

license: Public Domain

text:
    Robert BLATT, Employee, Plaintiff-Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Employer, and Travelers Insurance Company, Insurer, Defendants-Appellants.
    No. 32567.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.

      Sidney J. Murphy and Edward W. Warner, Evans & Dixon, St. Louis, for appellants.
    Joseph J. Dolgin, O’Connor & Dolgin, Clayton, for respondent.
   CLEMENS, Commissioner.

Claimant Robert Blatt was granted $892.51 in workmen’s compensation benefits for an injury received in repairing his car while in the course of his employment for defendant Metropolitan Life Insurance Company. The defendant employer and insurer appeal, contending claimant’s injury did not arise out of his employment.

The issue here is a narrow one. Defendants admitted claimant’s injury was accidental and did not question the amount of the award. And the defendants now concede claimant was injured while in the course of his employment. These concessions sharpen the issue to this: Where the claimant’s private car broke down while he was on company business, and preparatory to resuming his work he was injured because of the repairs he was making on the car, did the injury arise out of his employment?

Claimant was the only witness. He testified: For several years he had worked for Metropolitan as a “debit man,” selling insurance, making collections and servicing accounts in St. Louis. With the company’s approval he drove his own car in going about his work. The company paid him $10 a week for expenses incurred in his employment. On the afternoon of October 24, 1964, he left the company office, driving his car and accompanied by the local sales manager. They had two calls to make, one on a sales prospect and the other on a customer, Mr. Billups, with whom claimant had an appointment to deliver a company check and to discuss other company business. After calling on the sales prospect, claimant and the sales manager headed for Mr. Billups’ home.

Enroute to Mr. Billups’, claimant’s car stalled; he inspected it and found a defective coil. Claimant decided to buy a new coil at a store several blocks away, and the sales manager left claimant to keep other evening appointments of his own. Claimant returned to his car with the new coil. In the meantime, he had phoned a fellow salesman, Ernest Sciaroni, and asked him to drive to the place where the car had stalled. This, to assure claimant transportation in case he could not fix his car. Claimant found he could connect the coil with the ignition wires and start the motor, but could not connect the coil to the bracket that held it in place. ' He thought this temporary repair would not keep his car running and decided to replace the coil in its bracket. By then it was dark. Claimant did not feel safe in that neighborhood and the street light was too dim for him to fix the bracket. So, followed by Mr. Sciaroni, claimant drove his car back to the company’s well lighted parking lot. He intended to deliver the company check to Mr. Billups as soon as he fixed his car. He was in the process of connecting the coil to its bracket when his screwdriver slipped and pierced his hand. Claimant then went home for first-aid treatment. There he phoned Mr. Billups, explained his delay, and arranged to deliver the check the next morning.

As said, defendants concede claimant’s injury arose in the course of his employment. Their sole contention is that it did not arise out of his employment.

Both parties concede there is no pat formula for applying the phrase “arising out of his employment,” becaüse of the complexity of activities covered by the Workmen’s Compensation Act. Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62 [4], The parties agree each case must be decided on its own particular facts.

Despite these generalities, a thread of consistent principle runs through the fabric of decisions applying the term “arising out of his employment.” (See numerous cases collected in 29A Mo. Digest, Workmen’s Compensation, §§ 608-611.)' An accidental injury “arises out of” employment only when there is a causal connection between the employee’s injury and his employment. A claimant meets this requirement only when the injury is the rational consequence of an act incidental to his employment.

Other cases are helpful only so far as they are based on analogous facts. Claimant cites two such cases: Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530, and Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601.

In the Goetz case the claimant was a collection man for a furniture company. While making his rounds afoot on a summer day he stopped at a confectionery for a soft drink, and coming out he twisted his ankle. The court held that such an employee could be expected to pause for refreshment in the course of his day’s work, and added: “A pause by an employee within reasonable limits of time and place to satisfy the needs of the body for food or drink,, or even for refreshment, may well be considered as reasonably incidental to his work.” The court held claimant’s injury had arisen both out of and in the course of his employment. To us, there is a significant relationship between the court’s finding that the claimant’s activity at the time of injury was “reasonably incidental” to his work, and its decision that his accidental injury “arose out of” his employment.

In the Leilich case a traveling salesman was preparing to go on a business trip when he was asphyxiated in his home garage in fixing a flat tire on a company car. The only issue was whether the accident arose out of his employment. In affirming an award, the court said:

“Leilich was not employed to change tires but to sell automobiles. But clearly the changing of tires in the circumstances shown by the evidence was a task incident to his employment as salesman. Out of the performance of that task the accident arose which caused his death. This being obviously true, why split hairs in trying to trace a ‘causal connection’ between his employment and his death.”

Again, the issue of whether the accident “arose out of” the employment was determined by the fact that the employee at the moment of his injury was engaged in a task “incidental to” his employment.

The defendants cite three cases where recovery was denied claimants even though their injuries were incurred while engaged in acts incidental to their employment: Toole v. Bechtel Corp., Mo., 291 S.W.2d 874; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62; and Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743. The basis for denial in each of those cases, however, was that the injury was intentionally inflicted by a third person in circumstances having no relationship to the employer-employee relationship. In other words, the accidental injury was not incidental to — and, hence, did not arise out of — the claimant’s employment. (Such cases are based on the so-called “assault doctrine” and are collected at 29A Mo. Digest, Workmen’s Compensation, § 697.) The fact of a third party’s deliberate intervention in the cited cases distinguishes them from this one.

Next, defendants lay stress on the compensation cases of Finley v. St. Louis Smelting & Refining Co., 361 Mo. 142 (banc), 233 S.W.2d 725, and Carriker v. Lindsey, Mo.App., 313 S.W.2d 43, where claims were denied because the accidents did not arise out of the claimants’ employment. Each case bears a substantial similarity to our case, but each has a materially distinctive factor.

For example, in the Finley case the claimant’s car was parked in the company parking lot, and when preparing to drive home he was injured in loosening a balky fan belt on his car. The defense, as here, was that the accident did not arise out of claimant’s employment. The court referred several times to the claimant’s burden of showing that the accident arose while he was engaged in activity incidental to his employment. The court found that in repairing his car under the stated circumstances the claimant was not so engaged,, and denied recovery on the ground that “there is no causal connection between the injury and the employment.”

The Carriker case, too, has factual similarities. There the claimant drove to his job at a filling station and parked his car on his employer’s lot. He was making some repairs on his car motor, although not authorized to do so on company time, when suddenly the fan started and cut off part of his finger. The court quoted from and followed the Finley case, and denied recovery because the accident did not arise out of the claimant’s employment.

The facts in the Finley and Carriker cases bear several similarities to our case. In all three the claimant was injured during working hours; the claimant was then on the employer’s premises; and the claimant was repairing his own car when injured. But the distinguishing factor is that in the Finley and Carriker cases the claimants’ automobiles were being repaired by them for purely personal purposes. Not so here.

When claimant’s car first broke down he was performing defendant Metropolitan’s business. When he repaired the car, he did so for the purpose of resuming his duties for Metropolitan. We find that the claimant’s repair of his car was an act incidental to his employment, that there was a causal connection between his employment and his injury. It follows that claimant’s accidental injury arose out of his employment.

The judgment for claimant is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


author: MAUGHMER, Commissioner.

text:
    John S. VESTAL, Appellant, v. CITY OF ST. JOSEPH, Missouri, a Municipal Corporation, Respondent.
    No. 24612.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Motion for Rehearing and/or Transfer Denied April 3, 1967.
    Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.
    Edward P. Speiser, St. Joseph, for respondent.
   MAUGHMER, Commissioner.

In this case a jury was waived and the cause was tried to the court mainly upon a stipulation of facts. However, the plaintiff did present some testimony and defendant introduced certain city ordinances and charter provisions. The judgment was for defendant and plaintiff has appealed.

John S. Vestal, appellant, was duly appointed and served the respondent City of St. Joseph, Missouri as its Airport Manager from July 15, 1961 until June 15, 1964. He was paid the full salary of $425 per month provided for this post for the whole period. He also had the use of a house situated at the Airport and use of an automobile, both provided by the City.

The parties stipulated that during the period of his employment as Airport Manager, the plaintiff “on or about August 1, 1963, entered upon and began performing the duties of Purchasing Agent and Personnel Director and continued to perform the duties of Purchasing Agent and Personnel Director until on or about June 15, 1964”. It was further stipulated that plaintiff was appointed to the office of Personnel Director on October 7, 1963, by the Mayor of St. Joseph, and took the oath as such on April 10, 1964. Section 7.1 of the St. Joseph Charter in full force and effect at the time, provided:

“The Director of the Personnel Department shall be appointed by the May- or, with the advice and consent of the council, on the basis of his training, experience, qualifications, and fitness in personnel administration; and such position may be an additional duty in that the duties of such office may be assigned to another appointive officer, in which event, the same shall be done with the advice and consent of the council.”

There is no evidence that the appointment was made with “the advice and consent of the council”.

Plaintiff was also appointed to and assigned the duties of Purchasing Agent by the Mayor. Section 63 of the Charter establishes the Division of Purchases within the Department of Finance, the head of which shall be the City Purchasing Agent, who shall be appointed by the Director of Finance. Plaintiff was never appointed to the position by the Director of Finance, although that officer, according to the evidence, accepted him as such on the basis of the Mayor’s appointment. It was further stipulated: City Ordinance No. 17260 provided that the pay of the City Purchasing Agent should be not less than $464, and not more than $592 per month; that the ordinance fixing the compensation for the City Personnel Director provided for a salary of $7200 per annum, and that these ordinances were in full force and' effect at all times herein in issue. Plaintiff’s suit sought recovery of $600 per month as Personnel Director and $464 per month as Purchasing Agent, both from August 1, 1963 to June 15, 1964, in the total sum of $11,172, together with interest from March 5, 1965, the date upon which the petition was filed.

Section 2-25 of the St. Joseph City Code (in full force and effect at all times herein mentioned) provides:

“Compensation for regular employees —temporary employees to be engaged.
“(a) No officer or employee in the city service shall be entitled to any additional salary, fees, or other emoluments other than as expressly provided by the Charter or by ordinance for any duty performed or service rendered for the city or about its business or affairs; provided, however, that any officer or employee in the city service with peculiar and exceptional qualifications of a scientific, managerial, professional, or educational character may be further compensated by the city for special services other than and in addition to the services regularly performed by such employee or officer”.

The trial court found there was no evidence that plaintiff possessed peculiar and exceptional qualifications of a scientific, managerial, professional or educational character which would bring him within the one exception provided for in this section. Our examination of the record also fails to reveal any such evidence.

Our scope of review in a jury waived case is set forth in Rule 73.01(d) V.A.M. R. We quote therefrom in part:

“The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”.

In Coleman v. Kansas City, 348 Mo. 916, 156 S.W.2d 644, 648, 649, one of the issues presented was interpretation of a salary ordinance of Kansas City. The Supreme Court said:

“Section 130 of the salary ordinance is, in part, as follows: ‘Until otherwise provided by ordinance and except as otherwise may be provided in the charter, the positions, officials, and employees in the city’s service and respective rates of salaries or compensation for all services rendered by any such, whether in the capacity named or other, may be but shall not exceed the numbers or amounts respectively herein designated.’
“Section 131 of the same ordinance includes the following: ‘No officer, appointee or employee in the city service shall be entitled to any additional salary or compensation other than as expressly provided by the charter or this ordinance for any duty performed or service rendered for the city or in or about its business or affairs, and this regardless of the office or position held or work done or service rendered.’
“As we construe the above provisions of the ordinance, the city was prohibited from paying any officer or employee more than the scheduled salary for one office, even though he may have performed duties pertaining to one or more other offices or duties which had not been assigned to any office. This prohibition destroyed the right which otherwise the city may have had to pay, and these claimants to receive, extra pay for extra services”.

Section 131 of the Kansas City Salary Ordinance which we have just referred to is quite similar to Section 2-25 of the St. Joseph Municipal Code, supra. The trial court construed it in the case before us in accordance with the construction applied by the Supreme Court in Coleman. We agree. Plaintiff has not only failed to show authority for payment to him of all three salaries, but the Municipal Code forbids it.

Appellant cites four cases which he says support his basic contention that he is entitled to recover these second and third salaries. We shall refer to those cases. State ex rel. Kansas City v. Coon et al., Judges, 316 Mo. 524, 296 S.W. 90 en Banc., was an original proceeding in prohibition wherein it was sought to prohibit the circuit court from issuing a writ of mandamus compelling named city officials of Kansas City to reinstate a qualified city employee to his position and pay him the salary or compensation thereof. It was held that he was entitled to such reinstatement and that both de jure and de facto officers were entitled to compensation when they filled such offices or positions.

In Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 665, it was held (1) the Legislature fixes the compensation of county judges; (2) such compensation may not be reduced by change in the county classification; (3) payment may not be avoided under the County Budget Law through the device of budgeting a lesser amount and (4) the full compensation may be recovered by suit against the county.

Coleman v. Kansas City, Mo., 351 Mo. 254, 173 S.W.2d 572, involved a suit by city employees to recover the full amount of salaries provided by city charter and ordinances for the positions to which they had been appointed and the duties of which they had performed. The city officials under threat of discharge had coerced those employees into signing applications for leaves of absence and taking salary cuts, but nevertheless required them to continue performing the duties of the offices. It was held they were entitled to recover the full salaries.

Gershon v. Kansas City, Mo., 240 Mo. App. 418, 215 S.W.2d 771, involved a de facto clerk who had possession of the office and who performed the duties. He was required by the city manager to submit to salary deductions upon representations that the city had insufficient funds with which to make full payment. This court affirmed a judgment allowing recovery of the full salary.

In each of those four cases relied on by appellant only one office, one position and one salary was in dispute. The opinions in those cases are not decisive of or in point on the basic issue in the instant case. Appellant in his brief suggests that it is against public policy for an employee to waive or be permitted to waive all or any part of a salary legally fixed by ordinance. Would it not be against public policy, as well as unsound governmental practice for any one person to be appointed to three separate offices, at least two of which are contemplated full time posts, and concurrently receive all three of the salaries?

We concur in the conclusions reached by the trial court. Those conclusions are supported by the evidence. It is our opinion that the Municipal Code and the Ordinances referred to specifically herein preclude plaintiff from recovering the salaries provided for City Purchasing Agent and City Personnel Director when at the same time he was acting as and being paid the full salary provided by law for his services as Airport Manager.

The judgment is affirmed.

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

All concur.


author: BRADY, Commissioner.

text:
    Marion LOYD, Plaintiff-Appellant, v. Louis LEVIN and June Levin, Defendants-Respondents.
    No. 32490.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.
    James W. Jeans, Gregg W. Keegan, St. Louis, for plaintiff-appellant.
    Holtkamp & Amelung, Eugene S. Heit-man, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

Plaintiff received a jury verdict in the amount of $3,000.00 in her action for damages wherein she alleged defendants’ negligence in failing to remove ice and snow from a common walkway. Following the verdict the trial court sustained defendants’ motion for judgment in accordance with their motion for directed verdict offered at the close of all the evidence. Plaintiff appeals.

Among the other difficulties in ascertaining exactly what happened in this case is the fact that both counsel insisted upon using the words “here” and “there” and “right here” and “this point” when they were referring to the place plaintiff fell. It is obvious that they were pointing to a place on an exhibit but as this court stated in Armstrong v. Westroads Development Co., Mo.App., 380 S.W.2d 529, this manner of procedure, while helpful to the trial court or to the jury, fails to give this court any information. There is no way we can ascertain where “here” and “there” actually were with reference to the physical surroundings. Counsel finally had the plaintiff mark on an exhibit the place where she fell. That would solve the problem were it not for the fact that this exhibit is not lodged in this court and we are informed it has been lost. In spite of this and other similar difficulties replete in this transcript we have ascertained the facts, taken in the light required of us by the verdict in favor of plaintiff, to present the following situation.

The following precipitations and temperatures existed in the St. Louis area on the days immediately preceding the plaintiff’s fall and on the date of it. On December 7th a total of .24 inches of precipitation fell, there was a “trace” of snow, and there was no snow on the ground. On the 8th all that was noted was a trace except at 2:00 o’clock when there was a reading of .01 precipitation. There was a trace of snow that day and the maximum temperature was 37 degrees. Again there was no snow on the ground. On December 9th only a trace was noted at all readings with the exception of the 6:00 P.M. reading when .01 precipitation was noted.- There was a trace of snow on the ground at 6:00 A.M. and the maximum temperature was 28 degrees. The same is true of the 10th except that at 6:00 P.M. there was .01 precipitation and .03 at midnight. There was a trace of snow on the ground at 6:00 A.M. On December 11th the readings introduced show that .30 inches of precipitation fell, that 4.3 inches of snow or sleet fell, and there was 1 inch of snow or sleet on the ground at 6:00 A.M. of that day. The maximum temperature was 28, the low was 24, and the average was 26. On the day of the accident, the 12th, there was no precipitation of any sort except for a “trace” noted at the readings taken at 9:00, 10:00, and 11:00 A.M. At 6:00 A.M. of that day there was 4 inches of snow and ice on the ground. The high was 25, the low 15, and the average temperature was 20 degrees.

The plaintiff fell between 10:30 and 11:00 of the morning of the 12th of December. She was a tenant in defendants’ building. Her trash or garbage can was placed at the rear of a drive between the building in which she lived and the one next to it. As this drive came from the street toward the rear of the apartment building it was level or approximately so until it reached a point even with the rear door of the last apartment in the building when it sloped downward for a distance of over ten feet. It then leveled out into what was described as sort of a courtyard. It was on this that the garbage pails were placed. The bottom of this slope was roughly seven feet from the garbage pails. The plaintiff’s evidence was that the snow had drifted onto this driveway for several days and had melted and the accumulated water had frozen. It was bumpy and uneven as the result of people walking in it and then the footprints refreezing. It is undisputed that there had never been any attempt to remove this accumulation of snow nor to do anything else to make it more safe to walk upon. There was no definite path and people walked down the drive at any place along its width.

The plaintiff’s petition alleged the carelessness and negligence of the defendants in failing to clean the walkway of the accumulation of snow. The plaintiff submitted her case on MAI 22.05 (Modified). In its parts pertinent to our decision that instruction reads: “ ‘INSTRUCTION NO. 2 Your verdict must be for plaintiff if you believe: First, there was an accumulation of ice covered by snow on the sloping driveway and as a result the driveway was not reasonably safe, and Second, defendants knew, or by using reasonable care should have known, of this condition, * * *.’ ”

Defendants’ motion for judgment in accordance with their motion for a directed verdict offered at the close of all the evidence was based upon their contention there was a general snowfall in the area and thus they were not under a duty to remove this snow from the common walkway. It was on this ground the trial court sustained the motion. There is no doubt but that this is the rule followed in this jurisdiction as to natural accumulations of snow. See 52 C.J.S. Landlord and Tenant § 417d, p. 46, quoted with approval by this court in Woodley v. Bush, Mo.App., 272 S.W.2d 833. Seeking to avoid the application of that rule to the factual situation here presented the plaintiff advances a novel argument. She does not deny the general snowfall covering this area prior to the plaintiff’s fall and indeed, she could not, for such was her own evidence. Instead she urges two reasons why the rule is inapplicable to this case. First, she contends a sloping drive such as involved in this case constitutes an artificial condition. We need not rule upon this rather sweeping generalization. This for the reason that assuming, arguendo, the driveway constitutes such a condition, that fact alone is not sufficient to place a duty upon the defendants. The rule upon which plaintiff seeks to rely is that stated in Feld v. Frankel, Mo., 351 S.W.2d 755, 1. c. 757, where, quoting with approval from 26 A.L. R.2d, 1. c. 614, 620, it is said the landlord may be liable “ * * * ‘where the condition has arisen artificially as a result of the landlord’s negligence in maintaining either the common passageway itself or some other part of the premises in a defective condition.’ ” (Emphasis supplied.) In Feld v. Frankel, supra, the sidewalk was depressed so that water was caused to collect and formed ice upon which the plaintiff slipped and fell. In the instant case the plaintiff never made any contention as to any negligence on the part of defendants except in failing to clean off the snow or otherwise make the walk safe. She neither alleged nor proved any negligence on the part of defendants in maintaining this driveway. It follows that what is here involved is not a “ * * * condition (which) has arisen artificially as a result of the landlord’s negligence in maintaining * * * ” the common passageway. (Emphasis supplied.) Feld v. Fankel, supra.

The plaintiff then contends that, as stated in her brief, the question becomes “ * * * did the accumulation of snow and ice Plus the steep slope, plus footprints, create a condition that was one that the landlord should have corrected.” The plaintiff’s brief fails to enlighten us as to precisely what is meant by this argument. If the plaintiff is urging that while separately or in other combinations the factors of snow, a slope, and footprints may not be sufficient, nevertheless when taken together they jointly created a situation where a duty arose requiring the defendants to take action, the fallacy of that argument is easily illustrated. These factors, when considered separately, are either not available to the plaintiff in this case, or they are insufficient to create a duty. As stated earlier, the existence of the snow is of no assistance to the plaintiff for the reason it resulted from a general condition existing throughout the area and thus would not create any duty on the part of defendants. The second factor upon which plaintiff relies is the slope of the passageway but again it is difficult to understand her argument in this regard. If she intends to urge this court to confine the rule relieving a landlord of responsibility for the removal of snow in the event of a general snowfall to level passageways, the answer to her argument is that we find no precedent for doing so in the cases out of which the rule arose. See the Annotation in 26 A.L.R.2d at 610. Neither does the plaintiff suggest any good reason for such a limitation nor can we perceive of any. On the other hand, if plaintiff is attempting to urge the degree of steepness of the slope as a reason for a duty being placed on the defendants, several answers immediately suggest themselves. We will confine ourselves to only one. It is that this argument begs the question. The measures employed by a landlord to make safe a steep slope may necessarily increase with the steepness of the slope. That is to say, measures that might be found ordinary care in making a level walk safe might well be insufficient to meet that standard when attempting to make a steep walk safe. But that argument presupposes the establishment of the duty to make the walkway safe regardless of the degree of its slope and it is with that issue we are here concerned. Until that duty is established we need not concern ourselves with this facet of plaintiff’s argument.

The plaintiff then argues the existence of “footprints” as one of the reasons why, all these things taken together, defendants had a duty to remove this snow or to use ordinary care to make travel upon it safe. The simple answer to this contention is to be found in plaintiff’s petition and in the instruction upon which she submitted her case. She has never contended that she was caused to fall by tripping upon snow that had become hummocked or ridged by the thawing and re-freezing of travel through it. Her theory was that stated in her petition ; i. e., the accumulation of snow on this common passageway. There was no proof as to her fall being caused by such a condition and neither did she submit her case upon that theory.

There are two other answers which, at the risk of unduly extending this opinion, should be stated. The rules regulating the duty of a landlord in the removal of snow are analogous to and in fact developed coextensively with those governing the duty of a municipality as to the removal of snow from the sidewalks. See Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465; Harding v. City of St. Joseph, 222 Mo.App. 749, 7 S.W.2d 707; and Reno v. St. Joseph, 169 Mo. 642, 70 S.W. 123. In Gudorp v. City of St. Louis, Mo.App., 372 S. W.2d 483, this court, quoting from Reno v. St. Joseph, supra, recited the rule as follows : “ ‘ * * * Or when snow and ice are permitted to accumulate upon a sidewalk of a city, and are permitted to remain there until by thawing and freezing they become an obstruttion, and the sidewalk unsafe for travel, and the city has knowledge thereof for a sufficient length of time before an accident and injury occurs to one traveling thereon in the exercise of ordinary care, to remove the obstruction, and fails to do so, it will be held to respond in damages for the injury. * * * However, an examination of the cases in which such a rule is applied will illustrate that a general accumulation of ice or snow was not involved. What was involved was a specific or isolated area, as in Gudorp v. City of St. Louis, supra, where the snow or ice did not melt, or where there was a water discharge from a drain, or similar cause for an isolated condition. There is yet another reason why the existence of these footprints is of no assistance to the plaintiff. It is that in those instances in which footprints or tire marks or other things of that nature are relied on, the theory is that they have caused “ridging” or “hummocking” so that an additional hazard has been added. As is illustrated in Gudorp v. City of St. Louis, supra, the rule is that there must be notice to the city or to the landlord, and following that notice there must be evidence of a lapse of a sufficient length of time in which the jury could reasonably find that the landlord or city would have had time to remove this hummocked or ridged ice or snow. Examples of this type of case may be found in 26 A.L.R.2d, 1. c. 618, 619, [§ 3]. Even in those jurisdictions which do not follow a rule similar to ours and which recognize a duty on the landlord’s part to remove snow on a common passageway resulting from a general condition throughout the area it is necessary to prove notice to the landlord and a reasonable opportunity to correct the situation. Certainly there would be such a requirement in this case even if we were to adopt plaintiff’s theory as to these footprints. In the instant case there is no evidence from which the jury might find how long the ridging or hummocking of the snow had existed in order to determine whether the landlord had knowledge of that condition for a sufficient length of time to remove this condition. See 26 A.L.R.2d, p. 633, § 8. It follows that plaintiff must fail in her argument the snow, the steepness of the slope, and the existence of the footprints combined to create a situation where a duty arose upon the defendants to remove this accumulated snow. These facts are either unavailable to her under her own pleadings, proof, and the manner of submission of her case, or of no assistance to her under our rule as to accumulated snow resulting from a general snowfall in the area.

The judgment is affirmed.

PER CURIAM:

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

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


author: BLAIR, Judge.

text:
    William S. MORRIS, Administrator of the Estate of Lee Haynes, Deceased, Appellant, v. Grayce L. RETZ, Respondent.
    No. 24643.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court April 3, 1966.
    Application to Transfer Denied May 8, 1967.

      William M. Day, Walter A. Raymond, Raymond, West & Strader, Kansas City, for appellant.
    Len L. Balke, Kansas City, for respondent.
   BLAIR, Judge.

Grayce L. Retz filed a claim in the Probate Court of Jackson County, Missouri, against the estate of Lee Haynes, deceased, for services rendered him during his lifetime and after trial that court allowed her $7,200.00. William S. Morris, the administrator, appealed this allowance to the circuit court. By stipulation a jury was waived and the cause was submitted to that court on the record of the evidence and the exhibits previously submitted to the probate court. The record consisted solely of the evidence and the exhibits of Grayce L. Retz, for the administrator presented no evidence of any sort in either court. The circuit court rendered judgment for Grayce L. Retz in the sum of $12,500.00. From this judgment the administrator appeals. We shall refer to the administrator as Morris and to the respondent as Mrs. Retz.

Our duty is to review this action at law upon the law and the evidence as suits of an equitable nature are reviewed by appellate courts. Civil Rule 73.01(d), V.A.M.R. However, as stated, it was submitted to the trial court solely on the record of the evidence and exhibits previously submitted to the probate court. Where a case is submitted to a trial court solely on such evidence, the deference usually accorded to its determination of questions of fact because of its superior opportunity to evaluate the credibility of the witnesses personally appearing before it does not apply for the obvious reason that no witnesses appeared before it and it had no opportunity to evaluate credibility superior to that of the reviewing court. Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 635, 86 A.L.R.2d 925; Temperato v. Horstman, Mo., 321 S.W.2d 657, 661; 3 Mo. Digest, Appeal and Error, Key No. 1008(3).

The claim of Mrs. Retz was in two parts. The first part was for services to Lee Haynes from November 8, 1953 until April 5, 1956. These services consisted of “acting as his cook and housekeeper”. They were claimed to be of the reasonable value of $200.00 per month. The second part of her claim was for services to the deceased from April 5, 1956 until his death on November 8, 1963. These services consisted of continuing to act as his cook and housekeeper and acting “as manager of his household and office in his home”, “bookkeeper, personal nurse and as office girl and nurse in the practice of his profession”. These last services were claimed to be of the reasonable value of $450.00 per month.

Morris contends that the judgment must be reversed because the evidence conclusively shows that Mrs. Retz and the decedent at all pertinent times lived together in a “close and intimate” family relationship and that it must be presumed that the services were intended to be gratuitous in the absence of evidence to the contrary. He asserts that there was no evidence to the contrary. Mrs. Retz counters that Morris failed to plead the existence of a family relationship as a defense and therefore this defense was waived. She cites Muench v. South Side National Bank, Mo., 251 S.W.2d 1, 4. There the defense of family relationship was not pleaded and the court did rule that “such defense is special and affirmative, is in the nature of a confession and avoidance and should have been pleaded, if it were to be relied upon” and denied the defense. Its reliance was on Sec. 509.090, RSMo 1949, now Civil Rule 55.10. That ruling cannot be questioned but it does not apply to this case. The Muench case was a suit on the quantum meruit for services to a decedent filed directly in a circuit court and was controlled by Sec. 509.090, now Civil Rule 55.10. The present case originated in the probate court and is not subject to the Rules of Civil Procedure. The application of those rules is expressly restricted to proceedings of a civil nature in the Supreme Court, Courts of Appeals, Circuits Courts, and Courts of Common Pleas. Civil Rule 41.02; Lenhardt’s Estate v. Lenhardt, Mo.App., 322 S.W.2d 170, 173. It has long been the law in this state that formal pleadings are not required in cases originating in a probate court or on appeal therefrom to a circuit court. Cole County v. Dallmeyer, 101 Mo. 57, 13 S.W. 687; Rassieur v. Zimmer, 249 Mo. 175, 155 S.W. 24; Murphy v. Pfeifer, Mo.App., 105 S.W.2d 39, 41; 8 Mo. Digest 2, Courts, Key No. 202(2, 5). Furthermore, the question Morris really raises is that the evidence is insufficient to support the judgment and, since this is a non-jury case, that question may be raised in the appellate court whether or not it was raised in the trial court. Civil Rule 73.01; Lenhardt’s Estate v. Lenhardt, supra. The contention is without merit.

We have noticed that all of the evidence in this record was presented by Mrs. Retz and that Morris produced none. She presented ten witnesses. We believe that no purpose would be accomplished by setting forth individually the testimony of each witness and that generally a summary of their testimony is sufficient for the purposes of this case. On the important features of the case they were not in disagreement. Lee Haynes was a physician. He died November 8, 1963, at the age of 90. We gather from the record that Mrs. Retz and he were neighbors and lived across the street from each other as early as 1942. Whether they were mere acquaintances, friends, or more, or less, while they merely lived as neighbors, the record does not disclose. Prior to 1955, Mrs. Retz was an unlicensed practical nurse and “active” in her profession. Sometime prior to 1952 Doctor Haynes moved his office into his home across the street from the home of Mrs. Retz. Sometime during 1952 Mrs. Retz became the doctor’s cook and housekeeper and his “assistant as a nurse, assisting the doctor with patients”, working for him only part time. She also worked for others. In 1955 she obtained a state license as a' practical nurse and renewed it as required each year and it was still valid at the time of the doctor’s death.

In 1956 she moved into the doctor’s home. He was then approximately 83 years old. She continued as his housekeeper and cook and became his personal and office nurse on a full time basis. She was “on call” by him at all times seven days a week except for brief absences. If she was briefly absent, she asked a neighbor to look in on him. At first she moved a part of her furniture into his home. During the first two years she was there, she left a part of her furniture in her own home and paid the rent on that home. Then she moved the rest of her furniture to the doctor’s home. Whether she furnished a part of the living quarters of the home with her furniture or merely stored it is not established by this record. The doctor’s house consisted of two stories. The second story was unfinished. The living quarters were on the first floor. From the time she moved into his home in 1956, she ate her meals there. There were two bedrooms on the first floor. The doctor slept in the “back room” on the first floor and she slept in the “front room” on the same floor in order “to watch the door”. She cooked the meals and did the laundry. She took care of the yard. She worked “hard”. She did “everything”. She accompanied the doctor on calls and “helped to give shots, getting the medicine ready for the patients”. Ordinarily he drove to his calls in his automobile and she accompanied him. When he walked to his calls she carried his medicine case for him. In the office she usually wore a nurse’s uniform. She answered the telephone, helped with the patients and gave them medicine and shots. The doctor dispensed his own medicines. She assisted him in preparing his prescriptions. She assisted him in getting medicine together for the patients. She assisted him with his instruments. When the drug salesman with whom he dealt about every three weeks called at his office, ordinarily Mrs. Retz and he would check to see what drugs were needed. On infrequent occasions when he was absent from the office and Mrs. Retz was present, if the drug salesman called, she ordered from him what drugs she considered were needed by the doctor. He had given her this authority. On this record there is no question that, in addition to performing her other services, she served the doctor as his constant and regular office nurse during all of the period in question on this appeal. A former president of the Kansas City Chapter of the Professional Association of Licensed Practical Nurses in this state testified tint the prevailing rate for a licensed practical nurse was $15.00 per day from 1956 until May 1, 1963 when the rate was elevated to $17.00 per day. These rates were payable to licensed practical nurses living in the home of the employer. The duty of a licensed practical nurse consisted of taking care of the patient, his bedroom and his diet. This duty did not require taking care of the household. This summary is brief but it accurately reflects the evidence relating to the services rendered by Mrfe. Retz to the doctor part time before November 8, 1956, and full time seven days a week continuously from November 8, 1956 to November 8, 1963, when he died following a brief illness.

One witness was asked if she noticed any change in the doctor’s condition during the “last year or so” of his life and she answered that she did. There was other testimony that in the “last year or so” of his life he was enfeebled, “failing” and blind in one eye. The witness was asked “Did he require any assistance when he walked ?” She answered that he did. She was asked “Did anybody give him that help?” She answered “Yes, Mrs. Retz did. She looked after him all the time. In fact, she treated him as a father.” What she meant by her voluntary conclusion that Mrs. Retz treated the doctor as a father during the last year or so of his life was not developed any further by any evidence. No other witness made such a statement.

On August 7, 1963, about ninety days before the doctor’s death, he executed a formal document “enumerating furniture and household effects” belonging to Mrs. Retz and then in his home “in order to protect Grayce Retz, who has been my nurse for a long time * * * This record does not disclose that he ever referred to Mrs. Retz other than as his nurse to anyone.

We notice that the trial court in a memorandum declared that it was allowing no sum to Mrs. Retz for any services barred by the five year statute of limitations, Sec. 516.120(1), V.A.M.S., and this action of the court is not questioned on this appeal. There is no claim by Morris that the amount allowed is excessive. His single contention is that Mrs. Retz and Doctor Haynes at all pertinent times lived together in a “close and intimate” family relationship and that it must be presumed that her services to him were intended to be gratuitous in the absence of evidence to the contrary and he asserts there was none. There is no question that where services are rendered to each other by members of a family living as one household, they are presumed to be gratuitous. In such a case the law casts upon one claiming compensation the burden of rebutting this presumption. It devolves upon him to prove an agreement to pay for such services either by direct testimony or by facts and circumstances sufficient to justify a finding that there was a mutual understanding and intention to that effect. Morris cites many decisions declaring this to be the rule and it is the rule beyond all doubt. Our appellate decisions to this effect are numerous and unvarying. 13 Mo. Digest, Executors & Admr., Key No. 221(2).

For a family relationship to exist between persons residing under the same roof neither kinship in any degree nor illicit cohabitation between a man and a woman not married is essential. Such, relationship can exist without either. Wells v. Goff, 361 Mo. 1188, 239 S.W.2d 301, 303-304; Manning v. Driscoll’s Estate, Mo.App., 174 S.W.2d 921, 922; Brunnert v. Boeckmann’s Estate, Mo.App., 258 S.W.. 768, 770; Birch v. Birch, 112 Mo.App. 157, 86 S.W. 1106, 1108. Yet the mere circumstance that two or more persons reside-in the same home does not, standing alone,, establish a family relationship. For a concept that it did would force an anomalous and wholly illogical result. Every person residing in a home, roomers and boarders,, domestic servants, and nurses caring for patients, would be regarded as bearing a. family relationship to the head of the home and the members of his family. There must be more than mere residence under the-same roof to establish a family relationship- and that relationship must be established by evidence before there can be any presumption that services rendered are intended to be gratuitous. Birch v. Birch, 112 Mo.App.. 157, 86 S.W. 1106, 1108.

On the other hand, one who bears no family relationship to the person to whom he renders services is not presumed to have rendered those services, gratuitously, unless contrary evidence convinces that the services were actually intended to be gratuitous. Quite the contrary, the law declares, in such circumstances, that the mere rendering of the services implies a contract to pay and the burden rests on the party who accepts the services to prove that they were rendered gratuitously. Lauf v. Wiegersen, Mo.App., 297 S.W. 79, 82; Aldridge v. Shelton’s Estate, Mo.App., 86 S.W.2d 395; Murphy v. Pfeifer, Mo.App., 105 S.W.2d 39, 42; Manning v. Driscoll’s Estate, Mo.App., 174 S.W.2d 921, 923; Taylor v. Currie’s Estate, Mo.App., 83 S.W.2d 194, 197; Smith v. Davis’ Estate, 206 Mo.App. 446, 230 S.W. 670, 673; Offord v. Jenner’s Estate, Mo.App., 189 S.W.2d 173, 176; Steva v. Steva, Mo., 332 S.W.2d 924, 927.

The term “family”, as employed in the family relationship rule, is defined as a collective body of persons under one head and one domestic government, “who have reciprocal, natural, or moral duties to support and care for each other.” Offord v. Jenner’s Estate, Mo.App., 189 S.W.2d 173, 176.; Steva v. Steva, Mo., 332 S.W.2d 924, 926; In re Estate of Fox, Mo.App., 368 S. W.2d 909; Sevier v. Staples’ Estate, Mo. App., 309 S.W.2d 706, 708; Dalton v. Poinsett, Mo.App., 164 S.W.2d 124, 128; Manning v. Driscoll’s Estate, Mo.App., 174 S.W.2d 921, 923; Wood v. Lewis’ Estate, 183 Mo.App. 553, 167 S.W. 666, 669.

The situation of Mrs. Retz and Doctor Haynes and their relation to each other at the time her services were rendered must determine the question whether there was a family relationship. Lauf v. Wiegersen, Mo.App., 297 S.W. 79, 82. As we have observed, before Mrs. Retz began work for the doctor part time and while they were merely neighbors, there is no evidence from which we can determine whether they were acquaintances, friends, or more, or less. After she began working for the doctor part time there is no evidence of :any relationship other than that between one person rendering services to another who accepts them. After she began residing in his home and acting as his cook and housekeeper and his personal and office nurse in 1956, there is no evidence of any legally significant difference in their relationship. There is no evidence of any word either spoke to the other. There is no evidence to indicate how they conducted themselves toward each other when she was not performing the services she rendered and when the doctor was not immediately engaged in the practice of his profession. There is no evidence that they spent their leisure time together in the home or had any social life together outside the home. There is no evidence that they had any mutual friends who were entertained in the home and none that Mrs. Retz ever entertained her own friends in the home. There is no evidence that they ever went anywhere together except when she accompanied the doctor on professional calls or took him for walks in the last years of his life when he was enfeebled, “failing” and half blind. There is no evidence that either described the relationship to any other person except that the doctor, about ninety days before his death, in a formal document “enumerating furniture and household effects” belonging to her described her as his “nurse”. There is evidence that he furnished her with room and board and that he allowed her to bring her furniture into his house. The evidence does not disclose whether she used her furniture in his home or merely stored it. Even if she used it, this is a far call from establishing that she and the doctor lived in a family relationship. It is far from uncommon for women who take up a permanent residence in another’s home to want at least some of their own furniture. That he furnished her with room and board is what reasonable men would expect of him since he held her on call twenty-four hours a day seven days a week to serve him as a cook, housekeeper and as a personal and office nurse.

There is no explanation why Mrs. Retz would sacrifice her “active” practice of her profession as a licensed practical nurse, able to earn $15.00-$17.00 per day for rendering lesser services to others, to serve Doctor Haynes on call around the clock seven days a week for no compensation except her board and room. To argue on this record that she did so is totally unreasonable. Concerning the statement of the one witness who volunteered the conclusion that Mrs. Retz treated the doctor “as a father” without any development of the grounds for her conclusions, we can only regard what she says as descriptive of the conduct of a compassionate and kindly nurse toward an aged man, enfeebled and failing and half blind in the last years of his life. This conclusion alone, or coupled with all of the evidence, is a reed too slender for us to lean against it a ruling that a family relationship existed between the doctor and Mrs. Retz. Finally, there is a total absence of evidence, direct or circumstantial, that she and the doctor had any “reciprocal, natural or moral duties to support and care for each other” as members of one family. This is the true touchstone and, therefore, for this reason, as well as all of the other reasons we have recited, this record does not establish the existence of any family relationship. The relationship was simply that existing between two persons, one rendering services and the other accepting them, and the mere rendering of those services by Mrs. Retz and the acceptance of them by the doctor implied a contract to pay. In these circumstances, the burden rested on Morris to prove that' the services were rendered gratuitously if that was a fact. This he wholly failed to do.

He cites eleven typical decisions applying the family relationship rule. The rule announced by these decisions and the results they reached cannot be questioned. In each a family relationship was established by evidence meeting the requirements of the rule. They do not parallel the facts of this case where there is no evidence to establish a family relationship.

We have reviewed this cause de novo on the law and the evidence in accordance with the requirements of Rule 73.01(d), as they apply on this appeal, and we hold that the judgment of the trial court is in accordance with our own determinations of fact and conclusions of law and that it was for the right party. It is affirmed.

All concur.

      . Wells v. Goff, 361 Mo. 1188, 239 S.W. 2d 301; In re Estate of Fox, Mo.App., 368 S.W.2d 909, 913; Steva v. Steva, Mo., 332 S.W.2d 924, 926; Hyde v. Honiter, 175 Mo.App. 583, 158 S.W. 83, 87; Taylor v. Currie’s Estate, Mo. App., 83 S.W.2d 194, 197; Broyles v. Byrne, Mo.App., 13 S.W.2d 560; Wood v. Lewis’ Estate, 183 Mo.App. 553, 167 S.W. 666; Manning v. Driscoll’s Estate, Mo.App., 174 S.W.2d 921, 924; Dalton v. Poinsett, Mo.App., 164 S.W.2d 124, 128; Farris v. Faris’ Estate, Mo.App., 212 S.W.2d 71, 75; Trantham v. Gullic, Mo.App., 201 S.W.2d 522, 527.


author: DOERNER, Commissioner.

text:
    The WESTERN CASUALTY & SURETY COMPANY, a Corporation, Plaintiff-Respondent, v. SHELL OIL COMPANY, a Corp., and John J. Steel, Defendants-Appellants.
    No. 32286.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Motion for Rehearing or for Transfer to Supreme Court Denied March 17, 1967.
    Application to Transfer Denied May 8, 1967.

      Evans & Dixon, Eugene K. Buckley, St. Louis, for defendants-appellants.

      Lusser, Hughes & Lusser, Rene J. Lusser, Sr., St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This appeal involves a claim for non-contractual indemnity for liability arising in tort. Marilyn Boyer and Shirley Mae Guenther, teen-age girls, were injured when an explosion occurred in the ladies’ rest room in a filling station in DeSoto, Missouri. The station was being operated by Cledis Lanham under a written lease from Shell Oil Company, which owned and had constructed it. The Boyer and Guenther girls each brought an action in the Circuit Court of the City of St. Louis in which Lanham and Shell were joined as defendants. Shell effected settlements of both suits and the actions against it were dismissed, leaving Lanham as the sole defendant. Subsequently plaintiff, Lanham’s insurer, on the advice of its trial attorney, paid $6750 on behalf of Lanham in settlement of each of such suits. Relying on the subro-gation clause in Lanham’s policy, plaintiff then instituted this action against Shell and Steel, Shell’s employee, to recover the $13,-500 it had paid on behalf of its insured in settlement of the Boyer and Guenther suits. The court, sitting without a jury, rendered judgment in favor of plaintiff and against both defendants in the sum of $13,500, and after their post-trial motions were overruled defendants appealed.

The evidence shows that the filling station in question was designed and constructed by Shell in 1950 on a lot fronting on Boyd Avenue, at its intersection with Main Street, in DeSoto, and faced to the south. The station building, one-story high, was erected on the extreme rear of the lot, against a pre-existing three-story building on the adjoining lot to the north. Three gasoline tanks were located underground and were filled through pipes terminating in a manhole about 12 feet to the east of the station building. To dispel fumes, four vent pipes led from the underground tanks to the northeast corner of the station building, adjacent to the wall of the neighboring three-story building, and extended vertically from the sidewalk on the east side of the station to a point about 18 inches or 2 feet above its roof. Two rest rooms, one for each sex, were located on the east side of the station, the ladies to the north, with the door closest to the north wall, next to the vent pipes.

Lanham had occupied the filling station as Shell’s lessee from the time it was completed. The lease in effect at the time of the explosion provided, in brief, that the entire control and direction of the business and operations of the premises was vested in Lanham, with no right of control reserved in Shell, and stipulated that Lan-ham was not an agent or employee of Shell. The lease obligated Lanham to keep the premises in good order and repair but provided that Lanham could not make any attachments or additions to, or any alterations of, the building without Shell’s prior written consent. Emil A. Stobbe, Shell’s Division Engineer, in charge of the erection and maintenance of its filling stations, who had designed and supervised the construction of the station in question, testified that this reservation by Shell included the right to relocate the storage tanks and the vent pipes. For the purpose only of showing such right of control the plaintiff was permitted to introduce evidence that subsequent to the explosion Shell raised the vent pipes to a height above that of the adjoining three-story building. The lease also provided that Lanham should indemnify Shell against any and all claims and liability for injury of persons caused by or happening in connection with the premises or the condition, maintenance, possession or use thereof or the operations thereon. Defendant Shell does not urge that clause as a bar to plaintiff’s action.

Between 8:30 and 9:00 P.M. on August 20, 1957, Steel, Shell’s driver, drove its tank truck onto the east part of the station lot to deliver 2800 gallons of regular gasoline and 2000 gallons of ethyl ordered by Lanham. Steel attached one hose to the filler pipe which led to the tank for regular gasoline and another to the pipe for the ethyl tank, and discharged through both hoses simultaneously. Most of the witnesses described the weather as warm and “muggy,” with no wind blowing. About 9:00 P.M., while the gasoline was being unloaded, the Boyer and Guenther girls, walking home from downtown, stopped to use the ladies’ rest room, as they had often done before. While the Guenther girl was using the facilities the Boyer girl struck a match to light her cigarette, and an explosion occurred, which injured them.

Basically, plaintiff’s theory is that it is entitled to restitution from defendants under the doctrine of non-contractual or implied indemnity because the defendants were guilty of active and primary negligence towards the Boyer and Guenther girls, while Lanham was merely guilty of passive and secondary negligence. Such negligence on the part of defendants, it pleaded, consisted in the construction and location of the vent pipes in such close proximity to the adjoining building on the north, and at such a height, as to cause and permit dangerous gasoline fumes to accumulate in the ladies’ rest room; in failing to warn Lanham of the dangerous condition thereby created, although Shell had superior knowledge of the safety factors required in the design, construction and maintenance of the station, and particularly the vent pipes; and in causing an unusual and large accumulation of gasoline vapors to be emitted from the vent pipes by simultaneously discharging both grades of gasoline into the storage tanks. Regarding Lanham’s liability to the Boyer and Guenther girls plaintiff alleged that it was “ * * * solely by imputation of law for the vicarious liability of said Cledis I. Lanham due to the sole and direct and proximate negligence of the defendants * * * ” in the particulars just stated.

The court found that the negligence of defendants had been active or primary, and to have created the dangerous and hazardous condition which was the proximate cause of the explosion and the resultant injuries to the Boyer and Guenther girls; that the negligence of Lanham had been passive or secondary; and that as a result of defendant’s active and primary negligence, Lanham, plaintiff’s insured, was exposed to liability and compelled to pay $13,500 damages in settlement of the Boyer and Guen-ther lawsuits. Judgment, as mentioned, was rendered in favor of plaintiff for the sum stated.

As the court observed in Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 804: “There is considerable divergence and some confusion in the authorities, generally, as to the circumstances under which indemnity may be required for a liability arising in tort. * * * ” And as stated in Prosser on Torts, 2d Ed., 251, § 46, quoted with approval in McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W. 2d 788, 793; “* * * ‘It is difficult to state any general rule or principle as to when indemnity will be allowed and when it will not.’ * * * ” Perhaps the statement of principles most frequently quoted with approval by our Missouri courts is that given in Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 371, 24 A.L.R.2d 319, where it was said:

“ ‘Without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tort-feasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other.’ ”

Union Electric Co. v. M. D. Magary Const. Co., Mo., 373 S.W.2d 16, 21; Crouch v. Tourtelot, supra; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 507-508. While plaintiff refers to that statement of principles in its brief it leans heavily on the case of Kansas City Southern Ry Co. et. al. v. Pay way Feed Mills, Mo., 338 S.W.2d 1, in which the .decision was largely based on the rule given in Restatement of the Law of Restitution, § 95, p. 415, that:

“Where a person has became (sic) liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.”

Defendants do not take the position that one joint tort-feasor may never recover indemnity from another. In their brief they concede that our Missouri courts have recognized that the right to indemnity exists for liability arising in tort, but they emphasize that the right exists only in a “closely circumscribed” area embracing “a group of special situations and relationships.” State ex rel. Siegel v. McLaughlin, supra, 315 S.W.2d 1.c. 502. However, inasmuch as defendants do not contend that the claim in the instant case falls beyond the circumscribed area, or that it is not embraced within the group of special situations and relationships in which the right of indemnity has been held to exist, we note but need not discuss the various circumstances in which indemnity has been allowed or denied for a liability arising in tort. The scope of our review is accordingly restricted to the relatively narrow issues, three-fold in' number, presented in defendants’ brief; that the court erred in entering judgment for the plaintiff for the reason that plaintiff’s petition fails to state a claim upon which relief can be granted; that the evidence showed that Lanham was guilty of independent, active and primary negligence towards the Boyer and Guenther girls, was in pari delicto with the defendants, and is therefore not entitled to indemnity from them; and that the evidence was insufficient to support the judgment.

Under their first point defendants do not assert that the plaintiff’s petition, in and of itself, does not state a claim upon which relief can be granted. The argument they make is that plaintiff’s petition must be judged in conjunction with the Boyer and Guenther petitions against Lanham; that in those petitions Lanham was charged with active, primary and concurring negligence, and to have been in pari delicto with defendants; that plaintiff in this case is conclusively bound by such charges; and that plaintiff is therefore not entitled to indemnity. In support of their argument defendants cite Crouch v. Tourtelot, Mo., 350 S.W.2d 799; Union Electric Co. v. M. D. Magary Const. Co., Mo., 373 S.W.2d 16; Pierce v. Ozark Border Electric Co-op., Mo., 378 S.W.2d 504; Campbell v. Preston, Mo., 379 S.W.2d 557; Johnson v. California Spray-Chemical Co., Mo., 362 S.W.2d 630; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499.

Assuming the truth of the premise, that the Boyer and Guenther petitions charged Lanham with active, primary and constructive negligence, the decisive question is whether, under the circumstances as they exist in this case, Lanham and therefore plaintiff are conclusively bound by the allegations of negligence which were contained in the Boyer and Guenther petitions. A careful review of the decisions cited by the defendants reveals the significant differences which distinguish them from, and render them inapplicable to, the instant case. All of them involve either a situation in which one of two defendants, both of whom were charged with active and primary negligence by the injured plaintiff, endeavored to state a claim for indemnity in a cross-bill against his co-defendant; or a situation in which a defendant, charged with active and primary negligence by the injured plaintiff, endeavored to state a claim for such relief in a third-party petition against a third-party defendant. More importantly, in all of the cases cited, except Union Electric Co. v. M. D. Magary Const. Co., supra, the entire case was in the pleading stage and the plaintiff’s petition was pending and undisposed of. In such situations the court, in determining whether a claim for indemnity could be maintained, was required to and did judge the defendants’ cross-claim or third-party petition in conjunction with the underlying petition of the plaintiff, and was compelled to accept and regard as true the allegations of negligence charged in the plaintiff’s petition. For as was stated in Campbell v. Preston, Mo., 379 S.W.2d 557, 560: “In determining the sufficiency of a cross-claim filed by a defendant in a tort action, the court must assume that the facts stated in the plaintiff’s petition and the defendant’s cross-claim are true. * * * ” And since the purported indem-nitee was charged with active and primary negligence in the plaintiff's petition, and to be in pari delicto with the purported indemnitor, it was held in those cases that a cross-claim or third-party petition could not be maintained. Union Electric Co. v. M. D. Magary Const. Co., differs from the other cases cited only in that there, after filing its third-party petition against Magary, the electric company settled with the injured plaintiff. In testing whether its subsequently amended third-party petition could be maintained, the court held that the undisputed facts, particularly that of the erection and maintenance of the uninsulated wire with which plaintiff came in contact, showed that as a matter of law Union Electric had been guilty of active and primary negligence towards the plaintiff.

In the case at bar the Boyer and Guenther petitions are no longer pending, having been dismissed after the settlement made by Lanham. Hence the determination of whether Lanham was guilty of active and primary negligence towards the girls, or of only secondary and passive negligence, is not predicated on the pleadings, nor is Lanham bound by the allegations in the girls’ petitions. A brief example will demonstrate the error of defendants’ argument to the contrary. In both the Boyer and Guenther petitions Lanham, as well as Shell and Steel, was alleged to have “caused” the gasoline fumes to collect in the rest room. Yet there is not a shred of evidence in the record to support such a charge. If the Boyer and Guenther actions had been tried and resulted in a judgment against Lanham, then in this subsequent suit against the defendants for indemnity he would be bound by the negligence of which he was found guilty in the girls’ suits. City of Springfield v. Clement, 205 Mo.App. 114, 225 S.W. 120 (reversed on other grounds, 296 Mo. 150, 246 S.W. 175); Joshmer v. Fred Weber Contractors, Inc., Mo.App., 294 S.W.2d 576. But where, as here, the injured party’s claim was settled and there has been no final determination of the nature of the purported indemnitee’s negligence towards the injured party, then the character of such negligence becomes an issue of fact to be adjudicated in the indemnitee’s suit against the alleged indemnitor. And as an essential element of his case it is incumbent upon the indem-nitee to plead and prove that his negligence towards the injured party was only secondary and passive, and that of the indemnitor active and primary. A parallel to the present situation is found, not in the cases cited by defendants, but in Kansas City Southern Ry Co. et al. v. Pay way Feed Mills, Inc., Mo., 338 S.W.2d 1, where Price, an employee of the railway companies, sustained injuries as a result of the insufficient clearance between Payway’s movable dock and a box car on which Price was riding. The plaintiffs paid Price $15,000 in settlement of his claim under the Federal Employers’ Liability Act and then instituted an action for indemnity in that sum against Payway. Plaintiffs submitted their case by an instruction which required the jury to find, among other facts, that their negligence had been passive and secondary, and that of Pay way active and primary. Defendant, on the other hand, submitted a verdict directing instruction predicating a verdict for it upon a finding that the railway companies failed to use ordinary care to inspect the clearance and were thereby actively negligent. On appeal Payway contended that its motion for a directed verdict should have been sustained because the railway companies were guilty of active negligence as a matter of law, and that the court erred in submitting the issue of plaintiffs’ negligence to the jury. In overruling those contentions the court said (338 S.W.2d 7):

“ * * * It was necessary for the jury to find that plaintiffs were guilty of negligence. Otherwise, plaintiffs would not have been warranted in making a settlement with Price. But the jury was further required to find that such negligence was passive and that defendant was guilty of active negligence. Passive-negligence will not bar recovery of indemnity from a joint tort-feasor whose active negligence created the dangerous condition.”

and further (l.c. 9):

“The second contention of error in. regard to Instruction No. 1 is that the-instruction was erroneous in submitting-the issue as to whether plaintiffs were guilty of passive negligence when the evidence that plaintiffs moved the cars, coupled with failure to keep a lookout,, constituted active negligence as a matter of law. This is essentially the same-contention as was advanced by defendant in support of its contention that its motion for a directed verdict should have been sustained. Our discussion of that point is sufficient to indicate our view that the present contention is without merit.”

Here the nature of the respective negligence of the plaintiff and the defendants were disputed issues of fact which were tried and submitted to the court; and the court, as stated, found those issues in favor of the plaintiff. Under the authority of the Kansas City Southern case we hold that defendants’ claim that plaintiff’s petition did not state a claim upon which relief could be granted is without merit.

In cross-examination Lanham stated that “several times” prior to August 20, 1957 he had noticed gas fumes accumulating “on the outside, around close to where the rest-rooms are”; that “ * * * if there is an odor they are always stronger when they are putting gas in the tanks and the vent pipes are going”; and that depending upon the weather, and particularly the absence of a wind, the odor remained a very short time after they were through loading gas, about five minutes. Defendants argue that this testimony shows that Lanham was guilty of active and primary negligence in failing to warn Shell, lock the doors to the rest rooms while gasoline was being unloaded into the storage tanks, or post a “No Smoking” sign in the ladies’ rest room. In support of their argument defendants cite the latter part of § 95 of the Restatement, supra, to the effect that a payor who has not created the dangerous condition is entitled to indemnity “ * * * unless after discovery of the danger, he acquiesced in the continuation of the condition.” In the Comment under that section, after a reference to various factual situations, it is said:

“In all of these situations the payor is not barred by the fact that he was negligent in failing to discover or to remedy the defect as a result of which the harm was occasioned; in most of the cases it is because of this failure that he is liable. On the other hand, if the condition was such as to create a grave risk of serious harm to third persons or their property and the payor was or, from his knowledge of the facts, should have been aware that such a risk existed, his failure to make the condition safe is reckless and lie is not entitled to restitution (see § '88(b)).”

And in the Comment under Section 88 the authors lay down the rule that “ * * * It is a matter for judicial discretion to determine whether an act is so seriously wrongful as to bar restitution under the particular circumstances. * * * ” In the exercise of its judicial discretion the trial court found that Lanham’s negligence was only passive and secondary, and such as not to bar him from restitution. There can be no doubt of the character of his negligence, for the failure to warn or remedy has been held under comparable circumstances to be secondary or passive negligence. City of Springfield v. Clement, supra; Busch & Latta Painting Co. v. Woermann Construction Co., supra; Barb v. Farmers Insurance Exchange, supra; Kansas City Southern Ry. Co. et al. v. Pay-way Feed Mills, Inc., supra. Nor can it reasonably be said, we believe, that Lan-ham’s knowledge, actual or constructive, was such as to amount to that acquiescence which will bar restitution. Defendant Shell had constructed the station with the vent pipes at their height and location adjacent to the adjoining three-story building, and had reserved the right to change the existing conditions. Shell was aware that fumes were noticeable in the area of the pipes when gasoline was being delivered, for its employee and co-defendant, Steel, testified that he had previously reported that fact to his immediate supervisor. Furthermore, according to plaintiff’s expert witness, the simultaneous discharge of gasoline into the two storage tanks had the effect of doubling the amount of fumes emitted from the vent pipes into the restricted area and of producing a very rich mixture. The record is devoid of any evidence that Lanham (who was not present) or his employees were aware that defendants were discharging into the two tanks simultaneously. And while Lanham’s testimony indicates that he was aware that at times fumes were noticeable on the outside of the station, in the area of the rest rooms, when gasoline was being unloaded, it falls far short of showing any actual or constructive knowledge on his part of the entrance and accumulation of such fumes in the rest room, much less that of any concentration therein so great as to be dangerous and explosive.

Defendants’ final point, that the evidence was insufficient to sustain the judgment, hinges on the following question propounded and answer given during the direct examination of plaintiff’s expert witness, Dr. Lawrence E. Stout, a licensed chemical engineer and professor, and former head of the Department of Chemical Engineering and Dean of the School of Engineering of Washington University:

“Q And from what we see on Plaintiff’s Exhibit 3, and from Number 1 and 2, would the vent pipes at the elevation they were, and bearing in mind the amount of vapors spread in that area, Doctor, can you state with a reasonable degree of certainty whether these vapors could have been the cause of the explosion ?
“A In my opinion, it had to be a vapor that had recently been released in this particular area and driven to the ground, or had fallen to the ground as a result of greater density.”

Defendants assert that such testimony does not constitute substantial evidence of a causal connection between the location and height of the vent pipes and the explosion because the word “could” rather than “did” was used in the question; and because in his answer Dr. Stout did not restrict himself to vapors from the vents but talked about vapors generally. Whatever infirmities were inherent in the question, Dr. Stout’s answer was direct and specific, and expressed more than a mere possibility. The only reasonable construction of his answer is that the “it”'referred to the cause of the explosion; and the latter part established that in his opinion the vapor had “ * * * fallen to the ground as a result of greater density.” The only source from which gasoline vapors of great density could have fallen to the ground, according to the evidence, was from the vent pipes. Furthermore, when Dr. Stout’s testimony is considered as a whole, rather than one question and answer taken out of context, it amply supports plaintiff’s claim that the explosion occurred when a concentration of gasoline fumes in the rest room was ignited by the match struck by Miss Guenther, and that the concentration resulted from a combination of circumstances, including the inadequate height of the vent pipes; their location adjacent to the adjoining three-story building; the tendency of such fumes to fall; the restricted area for the dispersal of such fumes into the atmosphere, because of the location of the pipes in the 90° angle formed by the station and the neighboring building; the discharge of gasoline into both underground tanks simultaneously rather than consecutively, which doubled the amount of vapor emitted from the vent pipes and produced a very rich mixture; the absence of any wind and the “muggy” atmosphere; and the opening of the door into the rest room. We are of the opinion that such evidence was substantial and more than sufficient to support the judgment.

The judgment is therefore affirmed.

PER CURIAM.

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

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

      . Allowed in City of Springfield v. Clement, 205 Mo.App. 114, 225 S.W. 120 (reversed on other grounds, 296 Mo. 150, 246 S.W. 175); Busch & Latta Paint Co. v. Woermann Constr. Co., 310 Mo. 419, 276 S.W. 614; State ex rel. Algiere v. Bussell, 359 Mo. 800, 223 S.W.2d 481; Barb v. Farmers Ins. Exchange, Mo., 281 S.W.2d 297; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W. 2d 788; Kansas City Southern Ry Co. et al. v. Payway Feed Mills, Inc., Mo., 338 S.W.2d 1.

      . Denied in Crouch v. Tourtelot, Mo., 350 S.W.2d 799; Johnson v. California Spray-Chemical Co., Mo., 362 S.W.2d 630; Union Electric Co. v. M. D. Magary Const. Co., Mo., 373 S.W.2d 16; Pierce v. Ozark Border Electric Co-op., Mo., 378 S.W.2d 504; Campbell v. Preston, Mo., 379 S.W. 2d 557; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499.