author: RUDDY, Judge.

text:
    Robert L. SCHNEIDER, Public Administrator of the Estate of Lucille Friend, Deceased, (Plaintiff) Respondent, v. William D. FRIEND, (Defendant) Appellant.
    No. 30827.
    St. Louis Court of Appeals. Missouri.
    Oct. 16, 1962.

      Henry G. Morris, St. Louis, for appellant.
    James E. Crowe, St. Louis, for respondent.
   RUDDY, Judge.

This is an appeal by the husband, defendant in a divorce action, from an order of the Circuit Court of the City of St. Louis sustaining the wife’s motion for alimony pendente lite and attorney’s fees.

The petition for divorce was filed on the third day of June, 1959, and, among other things, alleged that plaintiff and defendant lived together as wife and husband until on or about May 20, 1959. Plaintiff also alleged that defendant “although gainfully employed and otherwise able to do so, failed to properly support and maintain plaintiff and to properly provide food and clothing and other necessities of life for her.” Contained in plaintiff’s petition was the allegation that she and the defendant were residents of the City of St. Louis, State of Missouri, and that she had resided in said city and state for one whole year and more next before the filing of the petition.

The record shows that the petition was subscribed and sworn to before a Notary Public in the City of East Chicago, State of Indiana, on the 28th day of May, 1959. Defendant’s answer to plaintiff’s petition admitted the marriage and the birth of one child; alleged that he was without sufficient knowledge at the time of filing the answer “as to the residence of the plaintiff to answer her allegation of residence,” and denied all other allegations in plaintiff’s petition.

On the 29th day of June, 1960, plaintiff filed her motion for alimony pendente lite, attorney’s fees and court costs. The motion was heard by the trial court on September 16, 1960, and on the same day the court entered its order granting $40.00 per week as and for alimony pendente lite and the sum of $150.00 as and for attorney’s fees. The defendant appeals from the judgment and order of allowance for alimony pendente lite and attorney’s fees. While the appeal was pending in this court plaintiff died and her administrator has been substituted as plaintiff.

Defendant relies on two points for reversal of the order and judgment. (1) (a) The plaintiff is not a resident of the City of St. Louis and State of Missouri and in fact is a resident of the State of Arizona, (b) The court is without jurisdiction of the person of respondent or of the res. (c) Venue of the cause does not obtain in the City of St. Louis, State of Missouri, where the divorce action was filed. (2) There was a complete failure of proof as to any income, financial means or financial worth by which defendant could pay plaintiff any amount.

The points relied on by defendant involve two separate theories as a basis for reversal of the judgment. Obviously, if defendant is correct in his first point, we need not consider the second point. Therefore, we shall consider the merits of defendant’s contention that the trial court was without jurisdiction of plaintiff’s divorce action because she was not a resident of the City of St. Louis, State of Missouri. In support of this contention defendant states that the evidence shows that plaintiff was not residing in the State of Missouri when she signed the petition for divorce in East Chicago, Indiana. Defendant contends that plaintiff left Missouri on May 20, 1959, and did not intend to return to live or make her home at any time in the future in this state. Put another way, defendant contends that plaintiff had not resided within the State of Missouri one whole year next before the filing of her petition. The solution to this contention depends entirely upon a question of fact and must be found in the evidence.

In plaintiff’s testimony, given in support of her application for pendente lite allowances, she testified that she lived at 3939 Prather Avenue in the City of St. Louis, Missouri, at the time her testimony. was given. Some confusion exists in her cross-examination as to her intention to establish a new residence, but essentially her testimony shows that she left the home on Prather Avenue on the morning of May 20, 1959. By pre-arrangement she met her brother and both she and her brother traveled ■ to his home near Chicago, Illinois. While staying with her brother she signed her petition for divorce before a Notary Public in the City of East Chicago, Indiana, and forwarded the petition to her attorney in St. Louis who filed same on June 3, 1959. From her brother’s place near Chicago, Illinois, she went to her daughter’s home in Houston, Texas, where she remained for approximately three months. She then went to her sister’s home at Chandler, Arizona, where plaintiff was staying at the time of the hearing on her motion for pendente lite allowances. The record is replete with testimony indicating that plaintiff was very ill, both physically and mentally when she left St. Louis and had been in hospitals and under the care of doctors while in Arizona. When asked why she left the home at 3939 Prather, she stated that her husband would not pay any of her bills and would not take her to a doctor. She further testified that her husband failed to provide her with food and clothing and that her sister has provided food and clothing and the medical aid she has needed since the beginning of her stay in Arizona. She has received no money or other help from her husband.

Plaintiff had' been staying with her sister in Chandler, Arizona, since the 18th day of October, 1959. In the cross-examination of plaintiff she testified that it was her intention to make Chandler, Arizona, her residence. However, on re-direct examination she was asked the following questions and gave the answers that follow:

“Q. Have you made any — done anything to establish your residence in ■ Arizona by» voting or paying taxes or anything of that nature? A. I have not.
⅜ ⅜ ⅜ ⅜ ‡ ⅝
“Q. Have you in your mind, by your intention changed your residence from St. Louis to Chandler, Arizona? * * * A. I have not.”

The law pertinent to the issue under review is found in Section 452.050 RSMo 1959, 24 V.A.M.S., the applicable part of which reads as follows:

“No person shall be entitled to a divorce 'from the bonds of matrimony who has not resided within the state one whole year next before filing of the petition, unless the offense or injury complained of was committed within this state, or while one or both of the parties resided within this state; ⅝ * (Emphasis ours.)

Also involved in a consideration of defendant’s point is Section 452.040 RSMo^ 1959, 24 V.A.M.S., which provides the venue of the divorce proceedings and reads, as follows:

“The circuit court shall have jurisdiction in all cases of divorce and alimony or maintenance; * * *. • The proceedings shall be had in the county where the plaintiff resides, and the process may be directed, in the first instance, into any other county in the state where the defendant resides.”

It has been held that this section merely provides the venue of the divorce proceeding. Nolker v. Nolker, Mo., 257 S.W. 798; Tate v. Tate, 227 Mo.App. 1141, 59 S.W.2d 790.

On the issue of jurisdiction of the subject matter defendant is correct when he states that the trial court only has jurisdiction where plaintiff has resided in the state one whole year next before filing her petition, except under circumstances not before us. Plaintiff does not dispute this statement. It will be observed that the statute, Section 452.050 only requires plaintiff to have resided within the state one whole year next before the filing of the petition. Defendant in his brief seems to contend that this section of the statute requires plaintiff to retain her residence in Missouri during the entire time the divorce suit is pending.

We do not concede that plaintiff has established a residence other than the one she had at 3939 Prather Avenue, St. Louis, Missouri. Assuming, without ruling, that she did establish a residence outside the State of Missouri, after -she filed her petition, the trial court would not lose jurisdiction to determine the divorce proceedings or any proceedings incident thereto if plaintiff had the required residence called for under Section 452.050 at the time she filed her petition for divorce. The applicable rule in this connection is set out in 17 Am.Jur., Divorce and Separation, § 291, p. 465, as follows:

“If the plaintiff in a divorce suit satisfies the residential requirements at the time of commencing proceedings, the court’s jurisdiction will survive a subsequent change of domicil in the absence of an express statutory provision to the contrary.- -At least-, this-is true to the extent of jurisdiction for an adjudication on the allegations of the plaintiff’s pleading as it stood at the ■ time of his removal. This result may rest on either of two grounds: (1) The statutes prescribing qualifications of residence nearly always contain the phrase ‘at the time of commencing suit’ or equivalent language; and (2) the situation is one to which the familiar equitable principle, that once a court has obtained jurisdiction of a cause, it will not be surrendered until the equities of all parties have been dealt with, applies.”

The crucial question to be answered in connection with defendant’s first point is whether or not plaintiff resided in St. Louis, Missouri, one whole year next before June 3, 1959, which is the date on which she filed her petition for divorce. There is no dispute about plaintiff’s residence in St. Louis, Missouri, for many years prior to May 20, 1959. It is defendant’s position that plaintiff did not reside in the State of Missouri when she signed the petition for divorce in East Chicago, Indiana, and had it filed in the Circuit Court of the City of St. Louis on June 3, 1959. If plaintiff in a legal sense retained her residence in St. Louis, Missouri, between May 20, 1959, and June 3, 1959, it would be sufficient to permit her to file her petition for divorce in this state. We hasten to state that there is no evidence that plaintiff, prior to filing her petition for divorce, had or maintained a residence any place other than in St. Louis, Missouri. In order for plaintiff to lose her residence in St. Louis, Missouri, she would have to create a residence elsewhere. To create a “domicile” or “residence” two elements are fundamentally and absolutely necessary or essential. These are actual bodily presence in. the place combined with the freely exercised intention of remaining there permanently, or for an indefinite time at least. Whenever these two elements combine a domicile of choice is created, and all former domiciles-are ipso facto abandoned. State ex rel. Taubman v. Davis, 199 Mo.App. 439, 203 S.W. 654, l. c. 656.

In the aforesaid case, the court quoted from Story on Conflict of Laws, 50, as follows: “ ‘Neither presence alone nor intention alone will suffice to create a domicile of choice. Both must concur, and at the very moment they do concur the domicile is created.’ ” (203 S.W. l. c. 657.)

These authorities clearly show that two elements are necessary to create a residence of choice. The person must be present in the new residence of his choice and he must have exercised an intention of remaining there permanently, or for an indefinite time at least. If these elements are not present, a residence is not created or acquired and, therefore, the old residence of the party continues as his or her residence. While the evidence shows that plaintiff was bodily present in East Chicago, Indiana, when she signed the petition and when it was filed, there is not a scintilla of evidence to show that she had formed the intention of remaining there permanently or for an indefinite time at least.

In the case of Nolker v. Nolker, supra, the Supreme Court had before it a contention that plaintiff was a resident of the City of St. Louis and not of St. Louis County and, therefore, St. Louis County did not have venue of the action filed by plaintiff. In that case the court held that actual residence and the intention of remaining either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode are sufficient to constitute a change of domicile. As we have said before, there is a failure in the evidence to show that plaintiff had a fixed intention to remain either permanently or for an indefinite period of time at any place between May 20, 1959, and June 3, 1959; nor is there any showing that she had a fixed or certain purpose not to return to her former place of residence at 3939 Prather Avenue, St. Louis, Missouri.

Defendant relies on the case of Phelps v. Phelps, 241 Mo.App. 1202, 246 S.W.2d 838. However, in that case the court held, as did the courts in the other cases we have cited, that actual personal presence in the new place and the intention to remain there, either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode, will constitute a change of residence. It was held in the Phelps case, as has been held in all Missouri cases, the fact of physical presence and the intention must concur. It must be a freely exercised intention to remain at the new place of residence either permanently or at least for an indefinite time. As we have said, there is nothing in the evidence to show that plaintiff before June 3, 1959, ever intended to create a new residence and abandon her old residence at 3939 Prather Avenue, St. Louis, Missouri.

A residence once acquired is not lost until a new one is created. The facts of the instant case come closely within the facts hypothesized in the statement appearing in 17 Am.Jur., Divorce and Separation, § 294, p. 468, wherein it is said:

“It frequently happens that when a wife leaves her husband because of his misconduct he remains within the state of matrimonial domicil while she leaves the state temporarily to live with her family or friends, either intending to return to the state at a later date or having no fixed idea of what she will do. In such a case the wife is deemed to have her residence of domicil in the state in which the parties cohabited as husband and wife, and the courts apply the general rule that a temporary absence from the jurisdiction without an attempt to establish a domicil elsewhere does not cause one to lose a domicil or residence within the jurisdiction, with the result that she may sue her husband for a divorce in the jurisdiction in which they last had a matrimonial domicil. Thus, the statutory requirement of a residence for one year is satisfied if the wife has a legal domicil within the state of matrimonial domicil for that period of time, , although she has been absent for a part or all of the statutory residence period.”

It is the rule of law that a residence once established within this state and not thereafter changed is sufficient for the maintenance of a divorce action, notwithstanding the physical absence of the resident for a short or long period from the State of Missouri. Phelps v. Phelps, supra; Trigg v. Trigg, 226 Mo.App. 284, 41 S.W.2d 583.

Under the evidence in this case the jurisdictional requirements as provided in Sections 452.050 and 452.040, RSMo. 1959, 24 V.A.M.S., existed when plaintiff filed her petition in the Circuit Court of the City of St. Louis. Jurisdiction over the person of plaintiff and the subject matter of the petition then attached and the court was not divested of its jurisdiction even though plaintiff thereafter and before trial left the state.

As we have shown, if the necessary residential requirement exists at the time of filing the petition for divorce, the court’s jurisdiction will survive a subsequent change of residence. However, we are not convinced that any subsequent change of residence took place after the filing of the petition for divorce. As we have pointed out, it is defendant’s contention the evidence shows that plaintiff intends to make Arizona her permanent residence. We do not think that plaintiff’s testimony is capable of such a conclusion. It is true that in her cross-examination she stated that she intended to make Chandler, Arizona, her residence. However, this is not to be construed to mean that she had already formed the intention to make Chandler, Arizona, her residence. We think it was plaintiff’s intention to state that at some time in the future she intended to make Chandler, Arizona, her residence. This becomes certain when we give meaning to her other testimony wherein she said she had done nothing to establish her residence in Arizona and that she had not as yet formed any intention to change her residence from St. Louis to Chandler, Arizona. In view of what we have said, the trial court had jurisdiction over the petition for divorce filed by the plaintiff and defendant’s contention to the contrary is overruled.

The second point relied on by defendant must be sustained. He contends there was a complete failure of proof as to any income, financial means or financial worth by which he could pay plaintiff amount.

[6]Prior to the Married Women’s Act, Section 451.250 et seq., RSMo. 1959, 24 V.A.M.S., alimony pendente lite was allowed as a matter of course and, as some cases held, was regarded as absolute. Since the adoption of the Married Women’s Act alimony pendente lite is no longer granted as a matter of course but depends on the necessity of the case. Whitwell WhitWhit-well, 318 Mo. 476, 300 S.W. 455; Kaye v. Kaye, Mo.App., 327 S.W.2d 496; Noll v. Noll, Mo.App., 286 S.W.2d 58; Summers v. Summers, Mo.App., 222 S.W.2d

[7,8] The burden is on the wife who makes the application for pendente lite allowances to show, at least prima facie, the facts which entitle her to the allowances. We have held before, the concon-siderations are the needs of the wife as shown by the circumstances, and finanfinan-cial ability of the husband to pay. McCarthy v. McCarthy, Mo.App., 329 S.W.2d 236.

The wife has the burden of showing that she has insufficient means to support herself and to defray the expenses of the litigation in which she is engaged and must show the financial ability and responsibility of the husband to pay for such support and expenses of the litigation. There are many authorities in this state holding the above to be true, some of which we cite. Padgett v. Padgett, Mo.App., 231 S.W.2d 207; Kaye v. Kaye, supra; Noll v. Noll,

[9] It will be noted from what we have said and in the cases cited that one of the burdens the wife -hks is to show the ability of the husband to make the payments. It is necessary that she produce some proof of his ability to pay the .allowance and the proof may take the form of showing what property he-.possesses, what income he has or perhaps what ability ;he has to earn money. That the financial ability of the husband, to pay is a primary consideration of the court and requires proof by the wife is beyond dispute and it has been held in numerous cases as necessary that some evidence of the husband’s ability to pay the allowances be produced by the wife. McCarthy v. McCarthy, supra; Kaye v. Kaye, supra; Papenberg v. Papenberg, Mo.App., 289 S.W.2d 468; Noll v. Noll, supra; Padgett v. Padgett, supra; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274; Howey v. Howey, Mo.App., 276 S.W. 84.

We said in the Papenberg case (289 S.W. 2d l. c. 470 and 471):

“These changed conditions would justify an increase in the allowance for her support and maintenance had plaintiff produced evidence of defendant’s ability to pay such increase. In the absence of such evidence we cannot say that the trial court abused its discretion in refusing to increase the ' amount of the award for the child’s support and maintenance.
⅝ ⅝ ⅜ ' ⅜ ⅜ ⅝
“The allowance of attorney’s fees and suit money is within the sound discretion of the court. However, before a court should be called upon to exercise that discretion there should be introduced some evidence of the husband’s ability to pay such an allowance.”

An analysis of the record before us shows that plaintiff failed to produce evidence of the defendant’s ability to pay the allowances made by the court. We think the record is sufficient to show that the plaintiff had insufficient funds to support herself and to defray the expenses of the litigation but she produced no evidence demonstrating the financial ability and -responsibility of the husband to pay the- allowances. We shall refrain from stating the evidence showing that she had insufficient means to support herself and to defray the expenses of the litigation and will confine our summary to those parts of the record which' bear upon the financial ability of the husband to pay the allowances. ‘

Plaintiff testified that the former occupa-; tion of her husband was chief mechanic inspector for the Missouri Pacific Railroad and that she and her husband owned the home at 3939 Prather which she said was held in joint names as tenants by the entirety. She was then asked: “Do you know whether your husband has any other aá-i sets?” and she answered, “No, I do not.” She further testified that her husband never discussed his financial affairs with her. Th'e first five or ten years of their marriage she knew something about his assets but after that she knew nothing. The record shows they were married approximately 39 years at the time she filed her petition for di4 vorce. No other evidence or testimony appears in the record touching the husband’s assets, whether or not he was employed or whether he had the ability to earn money..

Defendant’s interest in the home at 3939 Prather Avenue cannot be considered because neither party acting independently of the other could sell the property or encumber it. We do not think that his ownership in this property as a tenant by the entirety makes it available to him for payment of the allowances. Hopkins v. Hopkins, Mo.App., 260 S.W.2d 833; Burtrum v. Burtrum, Mo.App., 200 S.W.2d 80.

The record shows that plaintiff was treated rather shamefully by her husband in the matter of providing for her support and medical care and we reluctantly reverse the orders in her favor but, as we have pointed out, the cases today are unanimous in holding that it is the burden of the wife to produce evidence of the husband’s ability to pay the allowances. This she has failed to do and for this reason the order and judgment of the trial court must be reversed. It is so ordered.

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


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    Andrew HOCHREIN and Ernestine Hochrein, Plaintiffs-Respondents, v. Marian BALTHASAR and Dorothy Dennison, Defendants-Appellants.
    No. 31042.
    St. Louis Court of Appeals. Missouri.
    Oct. 16, 1962.

      Richard Wolff, Kappel & Neill, St. Louis, for defendants-appellants.
    Albert J. Haller, Clayton, for plaintiffs-respondents.
   DOERNER, Commissioner.

This is an action to enjoin the threatened foreclosure of a deed of trust and to compel the crediting of certain payments on a principal note thereby secured. The chancellor granted the relief prayed and defendants appealed.

The cause was submitted on an agreed statement of facts, together with the testimony of the parties concerned. In May, 1958, plaintiffs, who are husband and wife, purchased property at 3630 Iowa Avenue in the City of St. Louis from the Hasse Real Estate Company. In order to finance the purchase they borrowed the sum of $9,500 from F. A. Sander, the president of F. A. Sander Real Estate and Investment Co., Inc. The loan was evidenced by twenty negotiable promissory notes executed by plaintiffs, all dated May 17, 1959, payable to Mildred H. Sander, the wife of F. A. Sander. Ten of said notes were principal notes, of which those marked A, B, C, D, E, F, G, H and I were for $400 each, the first being due and payable six months after date and the succeeding eight due, in order, at six months intervals thereafter. The tenth principal note, marked J, was for $5,900 and was due sixty months after date. The remaining ten notes were interest notes for the interest to be earned on the principal at the rate of 6% per an-num and were numbered 1 to 10 inclusive. Note No. 1 was for $285, due six months after date, and each succeeding note was for the sum of $12 less than the one preceding it, and they were likewise due, in order, at six months intervals. As security for the notes plaintiffs at the same time executed a first deed of trust upon their property, in which Sander was named trustee and Mrs. Sander the third party beneficiary. All of the notes were made payable at the office of the Sander Real Estate and Investment Co., Inc., and the deed of trust provided that the third party, for herself and her successors in interest, would deposit all notes, whether for principal or interest, with the Sander Company for collection as they matured, for which the Company was to receive a fee of ½% of 1% per annum of the principal sum remaining unpaid. It was also stipulated in the deed of trust that the privilege was granted to the makers of the notes to pay the sum of $100 or any multiple thereof on account of “ * * * said principal note * * * ” on any payment date, provided that thirty days advance notice in writing was given the trustee, and that such prepayment would reduce the interest and principal proportionately.

On November 8, 1958, shortly before the first principal and interest notes fell due, plaintiffs went to the office of the Sander Company and paid $1,285 to Sander in payment of Interest Note No. 1 and Principal Note A, in the amounts of $285 and $400, respectively, and as a prepayment of $600 on account of principal. At that time Sander gave plaintiffs a receipt for $600 as “ * * * pay Off on Deed of Trust 3630 Iowa” signed “F. A. Sander Real Estate and Investment Co., Inc., By F. A. Sander.” About a week later they received through the mail the interest and principal notes, marked paid. On May 15, 1959, plaintiffs in the same fashion paid the sum of $955 in payment of Principal Note B for $400 and Interest Note No. 2 reduced proportionately to $255, and as a further prepayment of principal of $300. They received a similar receipt of the Sander Company, signed by Sander, for the $300 prepayment, and later received the cancelled principal and interest notes by mail.

About September 12, 1959, defendants purchased from the Sander Company all of the plaintiffs’ remaining unpaid principal and interest notes, together with the deed of trust, for $7,937.50, which figure included Principal Note J, reduced from $5,-900 to $5,000 by credits for the two prepayments theretofore made by plaintiffs; Principal Notes C through I for $400 each; and accrued interest of $137.05. The notes were all endorsed by Mildred H. Sander, without recourse. There was no dispute in the evidence that plaintiffs were not then advised of the purchase of their loan by defendants.

Thereafter, on November 7, 1959, plaintiffs gave Sander at the office of the Sander Company the sum of $1,234 in payment of Principal Note C for $400 and Interest Note No. 3 reduced to $234, and for a prepayment on account of principal of $600. They were given the customary receipt of the Sander Company, signed by Sander, for the latter sum, and later received through the mail the principal and interest notes, marked paid. The Sander Company sent defendant Balthasar a statement showing that it had collected the principal note for $400 and the interest of $234, accompanied with its check for $614.50, the amount it represented as having collected less its collection fee of $19.50. Mrs. Bal-thasar then sent Principal Note C and Interest Note No. 3 to the Sander Company.

Having made the prepayment of $600 on November 5, 1959, from plaintiffs’ standpoint the principal remaining due was $6,-800, on which the pro rata interest payable on May 17, 1960, was $204. Two days before that date plaintiffs paid the Sander Company the sum of $904, which to their view covered the interest due and Principal Note D for $400, as well as an additional prepayment on principal of $300. Pro rata interest on $7,400, the amount of principal due not taking into account the prepayment of $600, was $222. In an obvious effort to conceal its machinations, the Sander Company then sent Mrs. Balthasar a statement showing collection of interest of that amount, together with the principal currently due of $400, and enclosed its check for $603.50, the total stated collection less its fee of $19.50. Mrs. Balthasar then sent the company Principal Note D and Interest Note No. 4. In this instance Sander was not in the office when plaintiffs made their payment, and an employee named Weidhaas gave them a receipt of the Sander Company for the entire $904. Subsequently they received through the mail another receipt of that company, signed by Sander, for the prepayment of $300, together with Principal Note D and Interest Note No. 4, marked paid.

Sander died on July 17, 1960, and on the following September 23 the Sander Company filed a voluntary petition in bankruptcy. On or about October 23, 1960, defendants through their attorneys notified plaintiffs by letter that defendants were the holders of the notes and deed of trust, and that all payments should be made to defendants. This was the first information plaintiffs had that their notes and deed of trust had been sold to defendants, and they subsequently l-earned that defendants had not received the disputed prepayments of $600 and $300. On November 15, 1960, plaintiffs tendered to defendants $400 in payment of Principal Note E due two days thereafter, and $183 as the pro rata interest due on the alleged principal of $6,100. Defendants accepted the $400, but refused the $183 and demanded interest of $210, which they asserted was due on the principal balance of $7,000. Plaintiffs refused to pay the interest demanded, defendants threatened foreclosure, and this action followed.

In reply to a question on cross-examination, plaintiff Andrew Hochrein testified that he had asked Sander whether the prepayments were being recorded on Principal Note J, and was told that he would just get receipts until after the five years when the note came due. He admitted that he never saw any notes when he made the various payments to the Sander Company; conceded that he never saw any prepayments marked on the back of Principal Note J; and admitted that he never demanded that Sander produce the note so that he could see whether he was being given credit for the prepayments of principal. He further conceded that he did not know whether Sander had possession of the note when he made the prepayments, and stated that he thought Sander had it “ * * * in the family,” presumably meaning Mrs. Sander.

Mrs. Balthasar, one of the defendants, testified that following the death of her husband Sander telephoned her and asked whether she would be interested in buying a deed of trust. He gave her the location of plaintiffs’ property, which she examined, and she agreed to buy the loan. She paid the entire purchase price of $7,937.05 but made her daughter, defendant Dennison, the co-owner, as a gift to the latter. Mrs. Balthasar stated that at the time of her purchase Sander delivered all of the unpaid principal and interest notes to her, together with the deed of trust, and that thereafter she never relinquished possession of any of the notes except the $400 principal and interest notes collected. She testified that she had authorized the Sander Company to collect the $400 principal notes and the interest notes, for which it was to receive a fee, but stated on both direct and cross-examination that she had never authorized it to accept or collect prepayments of principal for her, and that she had forbidden him to do so. She testified that when she purchased the loan Sander told her, regarding prepayments, that she might have to wait, because plaintiffs had a son overseas and that when he returned he was going to pay off the loan. Sander also told her to let the principal run as long as it could run, because she would get more interest. In answer to a question by the court, Mrs. Bal-thasar stated that after she had received the first payment she asked Sander whether he had collected any more, and he replied that she should be glad they hadn’t paid any more as she would get more interest.

Mrs. Balthasar testified that she had never had any prior dealings with Sander. The other defendant, Miss Dennison, stated that she had nothing to do with plaintiffs’ notes, and had never authorized Sander to collect prepayments of principal thereon. She stated that when her grandmother died Sander sold the home, and she took back a deed of trust from the purchasers; that the purchasers paid off the deed of trust, (who made the collection she did not state) and that Sander then sold her a deed of trust on property on Nineteenth Street. Sander had made one collection of principal and interest on that loan as it fell due, when the Sander Company went into bankruptcy.

The chancellor found “ * * * that the F. A. Sander Real Estate & Investment Co., Inc., was the agent of the defendants for the collection of interest, principal, and principal prepayments, and that any restriction placed on the authority of their agent by defendants, was not binding on the plaintiffs who had no knowledge of any restrictions”; and that the disputed prepayments of $600 and $300 to the Sander Company “ * * * as agent for defendants, * * * ” were “ * * * deemed to be payments to defendants as principals.” The court enjoined defendants from foreclosing the deed of trust; ordered them to produce the principal note and to credit thereon the prepayments of $600 and $300; and directed that the interest was to he reduced proportionately on the remaining balance of principal.

Defendants do not dispute the trial court’s finding that the Sander Company was defendants’ agent for the collection of interest and the principal notes for $400. Nor could they very well do so, for Mrs. Balthasar’s testimony clearly established that she had directly authorized Sander to make such collections as they fell due. But defendants assert that the court erred in holding that the Sander Company was their agent for the collection of prepayments of principal, and in support of their contention cite Kraemer v. Leber, Mo.App., 267 S.W.2d 333 and Hamilton v. Hecht, Mo.App., 283 S.W.2d 894, both of which cases were decided by this court. In Kraemer v. Leber the plaintiffs borrowed the sum of $5,000 from one Pickles, a real estate dealer, and executed a principal note therefor, due in five years, together with ten interest notes for $125 each due at six-month intervals. The principal and interest notes, as well as the deed of trust, all recited that payments thereon were to be made at the office of Pickles; and the deed of trust further provided that plaintiffs had the right to make prepayments on account of principal of $100 or any multiple thereof on any interest maturity date, with a pro rata reduction of future interest. While the notes were owned by Pickles the plaintiffs paid four interest notes as they matured, and also made two prepayments to-talling $636.26 on the principal note. When plaintiffs paid the interest notes as they matured Pickles would deliver to them the interest note then being paid. When prepayments were made upon the principal note Pickles gave them a receipt. No endorsement of payment on the principal note was made on the note itself at such times. Pickles subsequently sold the notes and deed of trust to Mrs. Leber, the defendant. At the time she purchased the loan the principal note bore an endorsement of the payment of $500 (although plaintiffs had paid $636.26), leaving a balance ostensibly due of $4,500, the amount paid by defendant. After the sale, as an interest date approached, defendant would take the maturing interest note to Pickles, and receive from him the amount of $112.50 ostensibly due thereon. This occurred on three occasions within a period of twenty months after defendant had purchased the notes. On these three interest maturity dates plaintiffs paid the interest notes currently due which Pickles adjusted downward (to $109.-10, $100 and $100) because of plaintiffs prepayments of principal; and on two of the three occasions plaintiffs also made prepayments of principal of $363.74 and $200 respectively. Pickles gave plaintiffs the currently due interest note as they paid it, and a receipt for the prepayment of principal, but did not remit the principal to defendant. Pickles died, and his peculations came to light when defendant notified plaintiffs to make all payments to her as the holder of their notes. Plaintiff had never been notified of the sale of the notes to defendant, and such notice was the first knowledge they had of defendants’ ownership. There, as here, a controversy developed over the amount remaining due, defendants sought to foreclose, and plaintiffs brought suit to enjoin the foreclosure and to compel the crediting on their notes of the payments made to Pickles after defendants’ purchase.

As to the three interest notes which Pickles had collected after defendants’ purchase, this court held that the defendants’ course of conduct in taking such notes to him, and receiving from him the interest currently due thereon, established “ * * * an implied but none the less actual agency for the particular purpose of collecting the interest notes.” But as to the prepayments of principal which Pickles had collected from plaintiffs and failed to remit to defendant, this court said (loc. cit. page 338 of 267 S.W.2d):

“The stipulated facts do not, however, create the relationship of principal and agent with respect to the collection of payments on the principal note. The $4,500 note was a negotiable instrument of such a character that plaintiffs were bound to have known that it could and probably would be negotiated and passed into the hands of a third party. As a consequence plaintiffs in making payments on this note should have ascertained that the person to whom payment was made either owned the note or had possession thereof for the purpose of collection. When the maker pays money on a note to one who does not have the note in his possession he pays at his peril and at the risk of being required to show that the payee was authorised to collect the payment as the agent of the owner. Plaintiffs, in making payments on the principal note, in order to fully protect their own interests, were obliged to see to it that endorsements of the payments were made thereon and could not rely on a receipt from Pickles for credit on the amounts thus paid, without laying themselves open to the charge of negligence should he fail to remit faithfully to the owner of the note. These rules have been established by a long line of decisions, which are based on the equitable doctrine that where one of two innocent parties must suffer, the loss must fall upon the one whose negligence caused the loss. Cummings v. Hurd, 49 Mo.App. 139; Hefferman v. Boteler, 87 Mo.App. 316; McDonald v. Smith, 201 Mo.App. 78, 206 S.W. 591; Brants v. Runnels, Mo.App., 26 S.W.2d 1004; Montbriand v. Scruggs, 226 Mo.App. 436, 46 S.W.2d 211; Bost v. McFarland, 229 Mo.App. 776, 81 S.W.2d 350; Kirksey v. White, Mo.App., 167 S.W.2d 387.” (Emphasis ours.)

Plaintiff in the Kraemer case also contended that the rulings that Sander was defendants’ agent for the purpose of collecting interest, but not her agent for the collection of prepayments of principal, were inconsistent. In answer to that argument we said (loc. cit. page 338 of 267 S.W.2d) :

“Appellants Kraemer contend that the latter finding is inconsistent with the finding that an agency existed with regard to the collection of the interest notes, hut there is no such inconsistency. It is established law that from the fact that a broker is authorized to collect interest for the owner of the note it does not follow that he has authority to collect the principal. Bost v. McFarland, supra; Montbriand v. Scruggs, supra; Brants v. Runnels, supra; McDonald v. Smith, supra; Thornhill v. Masucci, 202 Mo.App. 357, 216 S.W. 819; Hefferman v. Boteler, supra.

The second case cited by defendants, Hamilton v. Hecht, Mo.App., 283 S.W.2d 894, likewise dealt with the question of the implied authority of an agent to make certain collections on notes. There the plaintiffs, the makers, borrowed the sum of $2,-500 from one Meckel, president of the Meckel Realty Investment Company, and executed twelve notes therefor, secured by a deed of trust. Notes numbered 1, 3, 5, 7, 9 and 11 were interest notes due at six-month intervals, the first for $75 and each succeeding one being for $3 less than the preceding one. Notes 2, 4, 6, 8, 10 and 12 were principal notes, the first five of which were each for $100, due at six-month intervals, and the last was for $2,000. The notes were all payable at the office of the Meckel Company. Nine days after the loan was made the Meckel Company sold the loan to defendant Lony but plaintiffs were not notified and had no knowledge of the sale. At the end of the first six months, when Notes No. 1 and 2 were due, defendant Lony presented them to the Meckel Company and received $175 for the principal and interest due, although in fact plaintiffs had not deposited any money with the Meckel Company. It developed that the plaintiffs did not have the money, and Meckel, president of the Meckel Company, worked out an arrangement with them whereby they paid Meckel $35 per month for six months, and their tenant in certain property paid his rent of $35 per month to Meckel. When the sum of $175 had been received Meckel delivered Notes 1 and 2 to plaintiffs. Defendant Lony had no knowledge of this arrangement, and when Notes No. 3 and 4 matured he took them to the Meckel Company and was paid $172 for the principal and interest due. Having been paid in advance for the notes, Meckel delivered them to plaintiffs. The same was true when Notes No. 5 and 6 matured. Shortly before Notes No. 7 and 8 were to mature Meckel died and the Meckel Company went into bankruptcy. Up to that time plaintiffs, through their own payments and the rent money, had paid the Meckel Company a total of $840. Notes No. 1 to 6 inclusive, totalling $516, had matured and had been paid and delivered to plaintiffs. Thus plaintiffs had paid the Meckel Company $324 in excess of the total of the notes which had matured, and contended that the Meckel Company had been the agent of defendant for all collections made by it and that they were entitled to a credit of that sum on their notes. Defendant Lony began foreclosure proceedings and plaintiffs sued.

In that case we pointed out that defendant Lony knew that plaintiffs were making payments to Lony for the currently due principal and interest notes, and that on three occasions Lony had accepted the proceeds from Meckel and had delivered to him the maturing principal and interest notes. As to such payments we said (loc. cit. page 899 of 283 S.W.2d), “* * * Under these circumstances, and on the authority of Kraemer v. Leber, supra, we have concluded that Meckel had implied but nonetheless actual authority to collect these notes for Lony when due.” However, as to the payments in advance made by plaintiffs we held (loc. cit. page 899 of 283 S.W.2d):

“It does not follow, however, that Meckel had implied authority to collect notes nos. 7 and 8 in advance and prior to the time they fell due. An agent’s authority to make collections for his principal will not be extended by implication so as to justify the collection by him of money before it is due, particularly a considerable time before the obligation matures, in the absence of some known course of dealing of such a character that reliance may be placed thereon by the obligor as indicating that the agent is actually authorized to collect in advance, or of some other circumstances giving the appearance of actual authority or a holding out of ostensible authority. O’Connell v. Reuter, 237 Mo.App. [883] 887, 178 S.W.2d 464; Bennett v. Royal Union Mut. Life Ins. Co., 232 Mo.App. 1027, 112 S.W.2d 134; Bost v. McFarland, 229 Mo.App. 776, 81 S.W.2d 350; Brants v. Runnels, Mo.App., 26 S.W.2d 1004; Paxston v. Gilliam-Jackson Loan & Trust Co., 221 Mo.App. 1101, 297 S.W. 119; McDonald v. Smith, 201 Mo.App. 78, 206 S.W. 591; City Nat. Bank v. Goodloe-McClelland Commission Co., 93 Mo.App. 123; 2 Am.Jur., Agency, § 171, pp. 136, 137; 2 C.J.S., Agency, § 107b (1), pp. 1281, 1282; Annotation 100 A.L.R. 389.”

In their brief plaintiffs concede the rule announced in Kraemer v. Leber and the numerous cases therein cited that when the maker pays money on a note to one who does not have the note in his possession he pays at his peril and at the risk of being required to show that the party to whom he paid was authorized to collect the payment as the agent of the owner. They likewise concede that having failed to ascertain whether the Sander Company still owned the notes or held Principal Note J for collection at the time they made the disputed, prepayments thereon, the law cast the burden upon them to show that the Sander Company was authorized by defendants to collect such prepayments. Kraemer v. Leber, supra; McDonald v. Smith, 201 Mo.App. 78, 206 S.W. 591. Plaintiffs do not claim that there was any evidence introduced which indicated that there was direct authority given by defendants to Sander or his company to collect prepayments of principal. In fact, Mrs. Balthasar testified that she had expressly forbidden Sander to do so, and her testimony remains uncontradicted. As we gather from plaintiffs’ brief, what they contend is: (1) that Sander’s, authority to collect prepayments of principal may be implied from what they describe as the “pertinent facts”; (2) that defendants are estopped from denying that Sander had such authority; and (3) that Sander was held out as defendants’ “general agent,” empowered to collect such prepayments of principal, and that the limitation placed by defendants on his authority to make collections cannot affect plaintiffs’ rights, since they had ■ no knowledge of such restrictions.

'In support of their first contention, plaintiffs quote a passage from Wallo v. Rosenberg, Mo.App., 331 S.W.2d 8 to the effect that the relationship of agency may be implied from the words and conduct of the parties'. Of course, as we have pointed out, that is the rule followed by this court in the Kraemer and Hamilton cases in holding that the evidence was sufficient to support the finding that Pickles and Meckel were authorized to collect interest (in the Krae-mer case) and principal and interest (in the Hamilton case) which had matured and was subsequently accepted from them by the 'respective defendants. As to the so-called pertinent facts enumerated by plaintiffs which they assert establish an agency to collect prepayments, let us examine each in turn and compare it with the corresponding factual situation in the Kraemer and Hamilton cases. As stated by plaintiffs, they are:

(1) All of the principal and interest notes, and the deed-of trust, directed that all payments were to be made at the office of the Sander Company. In the Kraemer case they directed that all payments were to be made at the office of Pickles, and in the Hamilton case at the office of Meckel.
(2) The deed of trust gave plaintiffs the privilege of making prepayments of principal. So did the deed of trust in the Kraemer case.
(3) Defendants were obligated by the deed of trust to accept such prepayments of principal. The defendant in the Kraemer case was similarly obligated.
(4) Plaintiffs, prior to the purchase by defendants, had made all payments, including prepayments of principal, at the office of the Sander Company. In the Kraemer case the plaintiffs, orior to defendants’ purchase, had likewise made all payments, including prepayments of- principal, at the office of Pickles. In the Hamilton case plaintiffs had made all payments of principal and interest at the office of Meckel.
(5)The principal note when purchased by defendants was endorsed with the two prepayments of principal which the plaintiffs had theretofore made. When defendant in the Krae-mer case purchased the principal note it bore an endorsement of one prepayment, although the plaintiffs had in fact made two.
. (6) Defendants knew from the endorsements on Principal Note J that prior to their purchase of the same plaintiffs had made prepayments of principal on each of two interest maturity dates, and failed to notify plaintiffs that they had purchased the notes. Defendant in the Kraemer case also knew from the endorsement on the . principal note that prior to her purchase plaintiffs had made a prepayment of principal on one of three interest maturity dates, and likewise did not notify the plaintiffs that she had become the owner and holder of the notes.

It has also been suggested that an additional fact to be considered is that defendants, after they purchased the notes, without making their ownership known to plaintiffs, twice accepted payments made by plaintiffs to the Sander Company. But the payments which defendants accepted were of interest and principal currently due. In the Kraemer case there were no principal notes maturing each six months, but the defendant, after her purchase of the notes, and without making her ownership known to plaintiffs, on three occasions accepted payments of currently due interest which plaintiffs there had paid to Pickles. However, in the Hamilton case, as here, there were principal notes, as well as interest notes, which fell due at six-month intervals, and the defendant in that case, after purchasing the notes, and without making his' ownership known to plaintiffs, on three occasions accepted payment of such principal and interest notes which plaintiffs there had paid to Meckel.

Plaintiffs do not attempt to draw any distinction between these so-called pertinent facts and the essential facts in the Kraemer and Hamilton cases. We are unable to discern any substantial difference. Had there been no testimony as to actual authority given Sander to collect the principal and interest notes as they matured we would have no hesitancy in holding, as we did in those cases, that such authority could be implied. But in the light of those cases, which we consider to rule the instant case, we cannot agree that the evidence was sufficient to establish the implied authority of Sander or his company to collect prepayments on account of principal.

As stated, plaintiffs’ second string to their bow is that the defendants are es-topped from asserting that Sander or his company lacked authority to collect the disputed prepayments of principal. To bolster their point they quote from Wind v. Bank of Maplewood & Trust Co., Mo.App., 58 S.W.2d 332, 336, to the effect that:

“The general rule is that the principal is bound by the acts of his agent when he has placed the agent in such position that persons of ordinary prudence, reasonably conversant with business usages and customs, are thereby led to believe and assume that the agent is possessed of certain authority, and to deal with him in reliance on such assumption. Koewing v. Greene County Building & Loan Association, 327 Mo. 680, 38 S.W.(2d) 40; Johnson v. Hurley, 115 Mo. 513, 22 S.W. 492; Noyes-Norman Shoe Co. v. Cooper, (Mo.App.) 4 S.W.(2d) 486; Underwood Typewriter Co. v. Century Realty Co., 165 Mo.App. 131, 146 S.W. 448.”

This rule of “apparent authority” is founded on the equitable doctrine of estoppel. Koewing v. Greene County Building & Loan Association, 327 Mo. 680, 38 S.W.2d 40; Johnson v. Hurley, 115 Mo. 513, 22 S.W. 492. In a case analogous to this, Hefferman v. Boteler, 87 Mo.App. 316, 321, Ellison, J. wrote:

“The principle upon which an agency is established by conduct is estoppel. That is to say, the principal’s conduct must be such as to mislead the debtor. His conduct must be such as to make it appear to the debtor that a certain party is acting as his agent; and though not true in point of fact, yet justice requires that he should not be allowed to dispute it in a contest with the party whom he has, by his conduct, misled. It must follow that in order to avail himself of this the debtor should have known of the principal’s conduct. Otherwise, he could not have been misled or deceived by appearances. It has therefore been held in cases in all substantial respects like this, that when the payor does not know of the holder’s ownership of the note there can be no estoppel against the holder to deny the agency of a third party, for the reason that in such case the payor could not be misled by the holder. Joy v. Vance, 104 Mich. 97 [62 N.W. 140]; Biggerstaff v. Marston, 161 Mass. 101 [36 N.E. 785], And so it is stated in one of the principal cases cited for plaintiff (to which we shall presently again refer) that the authority of such an agent will be conclusively presumed ‘so far as may be necessary to protect the rights of third persons who have relied thereon in good faith, and in the exercise of reasonable prudence.’ [First National] Bank [of Carthage] v. [Mutual Benefit Life] Ins. Co., 145 Mo. 127, 138, 46 S.W. 615. Now, in this case there is not a particle of evidence that plaintiff knew of any transactions between the defendant and the Sextons or the company. Indeed, plaintiff admits that he did not know defendant and never saw him until after the payment in controversy and after the company closed its doors. He therefore could not have been even influenced, much less misled, by defendant’s transactions with the company. He knew that some one owned the note, but he knew the party would not entrust it to the company and that the latter only got possession of the coupons by paying the sum due on them. This consideration disposes of the theory of agency by defendant’s conduct and course of dealing.” (Emphasis ours.)

For the same reasons, defendants here are not estopped to deny that Sander or his company were their agent for the collection of prepayments of principal. When plaintiffs made the disputed prepayments they did not do so in reliance on the apparent authority of Sander as defendants’ agent. How could they, when they did not know that Sander had sold their notes to defendants? See Hamilton v. Hecht, supra; Montbriand v. Scruggs, 226 Mo.App. 436, 46 S.W.2d 211. The fact of the matter is that they made the prepayments on the erroneous assumption that their notes and deed of trust were still owned by Sander or his wife. As plaintiff Hoch-rein testified: “To my knowledge I thought he had it — to be exact that he had it in the family.” We find no basis for the establishment of an agency by estoppel.

Lastly, as stated, plaintiffs invoke the doctrine stated in Farm & Home Savings & Loan Association of Missouri v. Stubbs, 231 Mo.App. 87, 98 S.W.2d 320, 334, that where the principal puts an agent forward as his general agent or places him in a position where, others are justified in believing that his powers are general, the restrictions that may be imposed privately on the agent are immaterial, except as between the principal and the agent, and cannot affect the rights or remedies of third parties dealing with the agent who have no knowledge of such restrictions or limitations. We have no doubt as to the efficacy of the rule, but it is devoid of any application here. As in the case of estoppel, the party affected must have known that he was dealing with an agent, and as we have already pointed out, plaintiffs here had no such knowledge nor did they make the disputed prepayments relying on such a belief. Furthermore, neither Sander or his company were defendants’ general agent, nor was either held out as such. Sander’s only authority was to collect the principal and interest notes as they fell due, and defendants did not even deliver such notes to him until they had first received the amount due thereon. As stated in McDonald v. Smith, 201 Mo.App. 78, 84, 206 S.W. 591, 593, where one Bonfoey and the Bonfoey Loan & Investment Company were the counterparts of Sander and his company:

“The facts here, however, justify the conclusion that defendant only sent the coupon interest notes to Bonfoey after receiving payment of same, and this did not make him or his company her general collection agent.”

It is apparent that both plaintiffs and defendants acted in good faith and are both innocent parties, and it is a matter of deep regret that either of them must suffer for the wrongs of a third party. But under the rule stated in Kraemer v. Leber, supra, and the numerous other authorities cited, we are constrained to hold that the loss resulted from the negligence of plaintiffs and that the burden thereof must therefore be borne by them.

For the reasons stated, it is the recommendation of the Commissioner that the judgment be reversed.

PER CURIAM.

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

Accordingly, judgment is reversed.

ANDERSON, P. J., WOLFE, J„ and JAMES D. CLEMENS, Special Judge, concur.


author: ANDERSON, Presiding Judge.

text:
    GLOBE-DEMOCRAT PUBLISHING COMPANY, a Corporation, (Plaintiff) Appellant, v. The INDUSTRIAL COMMISSION of Missouri, Division of Employment Security Department of Labor and Industrial Relations, a Public Quasi Corporation of the State of Missouri; and James L. Andert, (Defendants) Respondents.
    No. 31040.
    St. Louis Court of Appeals. Missouri.
    Oct. 16, 1962.
    Morton H. Orensetin, Hugh E. Gibbons and Hocker, Goodwin & MacGreevy, St. Louis, for appellant.
    Lloyd G. Poole, Jefferson City, for Industrial Commission.
    George Schwartz, Jefferson City, for Division of Employment Security, etc.
    james K. Cook and Schuchat & Cook, St. Louis, for James L. Andert. ;
   ANDERSON, Presiding Judge.

This is an action for judicial review of a decision of The Industrial Commission of Missouri made in respect to a claim for unemployment compensation under the Employment Security Law of Missouri, Chapter 288, RSMo 1959, V.A.M.S.

The claim was filed by James L. Andert. The Globe-Democrat Publishing Company was named as the employing unit. On January 21, 1960, a claims Deputy of the Division of Employment Security determined that claimant became eligible for unemployment compensation benefits on January 10, 1960. The Globe-Democrat appealed from this decision, and a hearing was had on February 10, 1960, before an appeals referee of the Division of Employment Security. Claimant appeared at this hearing, but the Globe did not. The referee, on February 16, 1960, rendered a decision affirming the determination of the claims deputy. The Globe thereafter, on February 26, 1960, applied to the Industrial Commission for a review of the decision of the appeals referee. Said application was denied on May 4, 1960. Thereafter, and on May 10, 1960, the Commission entered its order denying Globe’s request for reconsideration of its order of May 4, 1960. The Globe then brought this action for review in the Circuit Court of the City of St. Louis. Named as defendants were claimant and The Industrial Commission of Missouri, Division of Employment Security Department of Labor and Industrial Relations.

Claimant worked for the Globe-Democrat Publishing Company for eight years prior to his dismissal for lack of work in May 1959. At that time he was 63 years old. He was a member of Local No. 1 of the International Brotherhood of Electrical Workers, and had been a member of that union for approximately 32 years. Upon being laid off of work by the Globe-Democrat, claimant, through the union’s hiring -hall, secured practically full time work from the end of July 1959, until the 6th or 7th of January 1960. He was sent out on three jobs during this time. The next da} after being laid off from work in January he again registered his name on the out-of-work list of his union’s hiring hall but did not receive any assignment for work for the weeks ending January 16, 23 or 30. He was also registered with the public employment office. He made no other effort to secure work.

Claimant’s testimony as to the method pursued by unemployed members of the union when seeking work was as follows:

“Q. Electricians belonging to that union, when they become unemployed how do they go about in seeking other work?
“A. Well, in our case there it is known as a hiring hall setup. When you get laid off you put your name on the out-of-work list. For instance, when I put my name on I was 100 on the list. When my name comes up I get sent out on the job.”

On May 24, 1959, claimant filed his initial claim for unemployment benefits. Pie renewed his claim on January 10, 1960, claiming benefits for the weeks ending January 16, January 23 and January 30, 1960. As heretofore stated the claims deputy found that claimant became eligible for benefits on January 10, 1960. The Appeals Referee in affirming this decision made the following findings:

“The claimant worked for the employer as an electrician for a number of years. He was laid off because of lack of work in May, 1959. Throughout the period that he worked for the employer the claimant belonged to a local of the International Brotherhood of Electrical Workers. Upon being laid off in May of 1959 the claimant registered for work with his union and within a week or so the Union found him employment. The claimant has had three different jobs since working for the employer in this appeal. All of these jobs were secured through his ■ union. He had practically full-time work from May of 1959 to January 1, 1960. Members of the union to which claimant belongs secure most of their work through the union.
“During the three weeks under consideration the claimant was registered with his union but the union did not refer him to any jobs. The claimant was able to work, he wanted work, and there were no circumstances which would have prevented him from accepting employment.
“To be entitled to benefits under the Missouri Employment Security Law an individual must be available for work, and no person may be deemed available for work unless he has been earnestly and actively seeking work.
“The Referee finds that the claimant was available for work during the weeks under consideration. He wanted work and there were no circumstances which would have prevented him from accepting employment. His registration for work with his union, constituted an active search for work for an individual in his circumstances.
“DECISION:
“The determination of the deputy is affirmed.
“Dated at Jefferson City, Missouri, this 16th day of February, 1960.”

Globe’s application to the Indus-IndusCommission for review of this de-deit was alleged as grounds therefor that the Appeals Referee had erred in his findings, and should have found that claim-claimwas not available for work during the weeks for which the claim was allowed, for the reason that claimant had not, and was not, actively and earnestly seeking work. As heretofore stated this application was denied, and by reason thereof the decision of the Appeals Tribunal is to be deemed the decision of the Industrial Commission for the purpose of Judicial Review. (Sec. 288.200 RSMo 1959, V.A.M.S.)

Appellant’s contention on this appeal is that the trial court erred in affirming the decision of the Commission for the reason that it is not supported by competent and substantial evidence upon the whole record, for the reason there was no showing that claimant was actively and earnestly seeking work during the period of his unemployment.

In support of this contention it is urged by appellant that by merely registering his name on the out-of-work list at the Union hiring hall, claimant had not satisfied the requirements of the statute [§ 288.040, subd. 1(2)], since the record contained no competent and substantial evidence that members of the union secured most of their work in this manner, or that plaintiff secured practically full-time employment through the Union from May to January 1, 1960, as found by the Commission apparently as a basis for its conclusion that claimant was actively and earnestly seeking work after his layoff in January.

Claimant, in answer to a question calling for information as to how unemployed members of the union went about seeking other work, testified as to the existence of a hiring hall and stated that “when you get laid off you put your name on the out-of-work list.” It is true that this phase of the case could have been more fully developed and, perhaps would have been, had appellant appeared at the hearing to contest the case, but in our judgment the evidence was sufficient to support the finding of the Commission that unemployed members of the union secured most of their work through the Union’s hiring hall.

With respect to the finding that claimant secured practically full-time employment from May 1959 to January 1, 1960: this finding is slightly inaccurate, for the record shows that the full-time employment which claimant secured through his union was from the end of July 1959 to the 6th or 7th of January 1960. But such error in the finding should not result in a reversal or a holding that claimant during the period for which he seeks benefits was not actively and earnestly seeking work. Claimant sought unemployment benefits for a period during January 1960, and not for May, June or July 1959.

It may be that during May and June he was not actively and earnestly seeking work, for the record does not show when he first registered with the Union. But the record is clear that he did register his name the day following his layoff in January 1960, and if such registration is a sufficient showing that during the time for which he seeks benefits he was actively and earnestly seeking work, his failure to promptly do so in May 1959 is immaterial.

We believe that under the facts and circumstances of this case the Commission could reasonably have found that during the time in question claimant was actually and earnestly seeking work within the meaning of the Employment Security Law. He registered at his Union’s hiring hall, a means designed for members of the unión to attach themselves to the labor market. This system was effective in securing work for claimant on three prior occasions during the six months period ■prior to his layoff in January 1960. Having proved to be a workable method for securing employment its use by claimant cannot be viewed otherwise than a reasonable and good faith effort to secure suitable employment of a character which he was ■qualified to perform by reason of past experience and training. He did those things which a reasonably prudent person would be expected to do under the circumstances. •His efforts satisfied the requirements of the statute.

We will not prolong this opinion by '& review of the authorities relied upon by appellant in support of its position. We have‘examined each and every one of them and find they are either not in point or clearly distinguishable on their facts from this case. It was the function of the trial court in this case to determine whether the decision under review was supported by competent and substantial evidence upon the whole record. In our view the trial court correctly held the evidence sufficient in this respect. The judgment appealed from is affirmed.

WOLFE, J., and ELGIN T. FULLER, Special Judge, concur.

RUDDY, J., not participating.


text:
    MONARCH LOAN COMPANY, a Corporation, Plaintiff-Appellant, v. ANDERSON TRANSMISSION SERVICE, Defendant-Respondent.
    No. 31011.
    St. Louis Court of Appeals. Missouri.
    Oct. 16, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 20, 1962

      Sidney Rubin, St. Louis, for plaintiff-appellant.
    Thomas P. Clarke, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

This action for the replevin of an automobile originated in the Magistrate Court, where defendant prevailed. Plaintiff appealed to the Circuit Court, where the case was tried without a jury, and a judgment entered from which plaintiff has appealed.

The petition is in the usual form. Plaintiff alleged that it was entitled to the possession of the automobile, a 1956 Buick Fordor, stated to be of the value of $1832.5.0, and that the defendant was wrongfully detaining it. Plaintiff gave bond, and the car was seized by the constable on May 26, 1959, and turned over to plaintiff. Defendant filed an answer in which it denied generally the allegations in plaintiff’s petition, and pleaded a counterclaim for repairs and storage in the amount of $257.77, for which it claimed a lien. The car was owned by one Eddie Malone, who is not a party to this action. Plaintiff held a promissory note executed by Malone, secured by a chattel mortgage on the automobile, which was in default at the time of the seizure. By the terms of the chattel mortgage plaintiff was authorized to take possession of the car in the event of a default. At the trial defendant conceded the validity of the note and chattel mortgage, and also conceded that the entire obligation was due at the time of seizure. Thus in effect the only controverted issue was whether defendant was entitled to a lien.

Regarding the repairs it made, defendant’s witness Alfonso Anderson testified that Malone had telephoned him around the last of February or the first of March, 1959, and asked him to pick up the car, which wouldn’t run because the transmission was out. Anderson had a towing company bring the car from Malone’s home to defendant’s shop, and after inspecting it advised Malone that the cost of repairing the transmission would be a couple of hundred dollars, or possibly a little more. Malone stated that he wasn’t working steadily at his job in the construction field, and that he didn’t have the money to pay for the repairs. Anderson then attempted to arrange financing for Malone but the finance companies to which Malone’s application was submitted refused to make the loan. Meantime the car remained on defendant’s lot. Anderson further testified that on Saturday, May 24, 1959, Malone telephoned him to get the car ready because he was back at work.

The transmission was completely overhauled, and a new muffler and tail pipe were installed, according to Anderson, and the work was about completed when the constable took possession under the writ on Tuesday, May 26. Defendant’s bill for parts and labor came to $229.77, and its charge for storage, at the rate of 50‡ a day, was $28.00. No written memorandum for the repairs was signed by Malone.

In rebuttal, plaintiff produced Malone as a witness, who testified that a leaky seal had permitted the dynaflow fluid to escape. He telephoned Anderson, who estimated the cost of repairing the seal at $45. Malone told his wife to tell Anderson to call for the car and repair it. About three or four weeks later AnderSon told him the transmission was gone, and Malone advised Anderson to forget the whole deal, that he wasn’t going to have it fixed. He stated that he had never authorized the repairs to the transmission, orally or in writing, and said that he had never asked for the return of the car. On cross-examination it was developed that about three or four months after plaintiff obtained possession of the car Malone caught up on his delinquent payments on his note, and plaintiff delivered the automobile to him. Malone also said that at that time $257 worth of work had to be done, which included some transmission work. Plaintiff produced James Smythe, its office manager, who testified that he accompanied the constable when the seizure was made, and that the car wouldn’t start. However, he subsequently indicated that the car wouldn’t start because the battery was down. Smythe produced a bill from a mechanic named Frank Spann, dated November 23, 1959, for $257.04, which contained an item for transmission repairs of $55. Smythe had authorized the work, plaintiff paid for them, and Malone was to reimburse plaintiff.

The court found that plaintiff’s possession of the automobile was not disputed, and that defendant was entitled to a common law lien for work and labor, but not for storage, citing Gale & Company v. Hooper, Mo.App., 323 S.W.2d 824, aff. 330 S.W.2d 826 and Mack Motor Truck Corp. v. Wolfe, Mo.App., 303 S.W.2d 697. However, the judgment actually entered merely provided that plaintiff recover of defendant possession of the automobile on plaintiff’s petition, and that defendant recover against plaintiff the sum of $229.77 on its counterclaim.

Initially, plaintiff insists that the court erred in holding that defendant was entitled to any lien, and asserts that defendant failed to sustain its burden of proving that it made the repairs for which it claims a lien. This argument ignores Anderson’s testimony that defendant completely overhauled the transmission. Plaintiff also attacks the credibility of Anderson by pointing to Smythe’s testimony that the car wouldn’t start at the time the constable picked it up, and to the fact that Spann’s repair hill included an item for “trans repairs.” But Smythe’s testimony also indicated that the reason the car wouldn’t start was because the battery was down. And as to Spann’s bill, assuming that he made repairs on the transmission on November 23, there was no evidence that they were required because defendant’s work, performed in the preceding May, was defective. Nor was there any definite evidence in the record as to the whereabouts of the car in the interim, or the care it had been given. The only evidence on that score was Smythe’s testimony that he had no knowledge as to where the car was during that period but would “assume” that it had been on plaintiff’s storage lot. We cannot agree with plaintiff’s contention that defendant failed to sustain its burden of proof regarding the repairs it made.

Plaintiff next contends that the trial court erred in holding that defendant was entitled to a common law lien for the reasons, first, that defendant had pleaded a statutory lien under Section 430.020, RSMo. V.A.M.S., but had failed to sustain it because Malone had not signed a written memorandum for the repairs; and second, that defendant did not plead a common law lien and therefore could not rely or recover on such a lien. In its answer and counterclaim, after denying generally the allegations in plaintiff’s petition, defendant pleaded, in separate paragraphs: Malone’s ownership of the car and his contract with defendant for the repairs; its performance; that the sum of $229.77 was due defendant for the work and labor performed; that Malone failed and refused to pay; that defendant had also stored the automobile, for which it was entitled to $28; and (in Paragraph VII) “That defendant is claiming a lien on the above stated automobile for labor and materials furnished and storage of the same under the provisions of Section 430.020, Missouri Revised Statutes, 1949.” Defendant also alleged that plaintiff’s repossession of the car “ * * * was illegal, unjust and unlawful .* * and prayed for a judgment against plaintiff for $257.77 actual and $400 punitive damages, and for the return of the automobile until that sum was paid. Defendant counters plaintiff’s argument by asserting that by paragraph VII it was claiming a common law lien for its work and labor and a statutory lien for its storage; and that in any event it was not required to plead a common law lien in order to be entitled thereto.

It is unnecessary for us to decide whether by the paragraph quoted defendant pleaded only a statutory lien or whether it thereby claimed a common law lien for the repairs and a statutory lien for storage. This for the reason that under its general denial it was permissible for defendant to prove it was entitled to a common law lien. McCluskey v. De Long, 239 Mo.App. 1026, 198 S.W.2d 673; Anthony v. Carp, 90 Mo.App. 387. The rule is based on the fact that replevin is a possessory action. Strothkamp v. St. John’s Community Bank, Inc., Mo. 329 S.W.2d 718; Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764, 94 A.L.R. 941, and that in such an action it is necessary for the plaintiff to plead and prove his right to the immediate possession of the property at the time he filed his suit and that defendant was then wrongfully detaining the same. Wilks v. Stone, Mo.App., 339 S.W.2d 590; Cindrick v. Scott, 226 Mo.App. 153, 42 S.W.2d 957. Hence under a general denial the defendant has a right to show any fact or facts disproving or tending to disprove plaintiff’s asserted right to immediate possession. State ex rel. Booker v. Bland, 355 Mo. 786, 197 S.W.2d 967; Ball v. Davis, Mo.App., 107 S.W.2d 87. And this includes proof of defendant’s special interest in the property, such as a lien, which entitled him to retain the same. Rankin v. Wyatt, supra; McCluskey v. De Long, supra; Sutton v. St. Louis & San Francisco R. Co., 159 Mo.App. 685, 140 S.W. 76; Anthony v. Carp, supra. It follows that in the instant case it was permissible for the defendant, under its general denial, to show that plaintiff was not entitled to possession of the automobile replevined because of defendant’s common law lien. McCluskey v. De Long, supra.

Plaintiff’s final point is that the court -erred in taxing costs against it. It points to that part of the judgment in which it was given possession of the automobile and contends that it was “the party prevailing” within the terms of Civil Rule 77.06, V.A.M.R. and therefore entitled to its costs. The fact of the matter is that the judgment entered did not follow the court’s finding that defendant was entitled to a lien for work and labor, nor did it accord with Civil ■Rules 99.11 and 99.12. These rules provided. that when the plaintiff has obtained possession of the property under the writ .-and defendant has demanded its return, as was the case here, the judgment should be against the plaintiff and his sureties that he. return the property taken or pay its assessed value, at the election of defendant, and also pay damages for the taking, and costs. The court should have adjusted the equities between the parties by providing in ■the judgment for the recovery by the defendant of the amount due it under its lien or for the return of the property until such sum was paid, at the option of the defendant, and for costs. Dilworth v. McKelvy, 30 Mo. 149; McCluskey v. De Long, supra; Sanders v. Brooks, 239 Mo.App. 578, 194 S.W.2d 540; Sidney Smith, Inc. v. Steinberg, Mo.App., 280 S.W.2d 696. Defendant did not appeal from the judgment entered, nor object to its form either here or below, and there is authority to the effect that a successful defendant in a replevin action may exercise his option by accepting a personal judgment for the amount due under his lien. Bostic v. Workman, 224 Mo.App. 645, 31 S.W.2d 218. Had judgment been entered in accordance with Civil Rules 99.11 and 99.12 plaintiff would have been liable .for costs. While that part of the judgment awarding possession of the car to plaintiff may have been erroneous, the assessment of costs against it was not, and plaintiff is not in any position to complain. '

For the reasons stated, the Commissioner recommends that the judgment be affirmed.

PER CURIAM.

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

Accordingly, judgment is affirmed.

ANDERSON, P. J., and MARSHALL CRAIG and WILLIAM M. KIMBERLIN, Special Judges, concur.


author: WOLFE, Judge.

text:
    Joseph F. HUCK, Jr., and Division of Employment Security, a Public Quasi Corporation of the State of Missouri, (Plaintiffs) Respondents, v. The INDUSTRIAL COMMISSION of Missouri, and Pittsburgh Plate Glass Company, a Corporation of the State of Pennsylvania, (Defendants) Appellants.
    No. 30952.
    St. Louis Court of Appeals. Missouri.
    Oct. 16, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 20, 1962.

      Harry L. C. Weier, Dearing, Richeson & Weier, Hillsboro, for Pittsburgh Plate Glass Co.
    Lloyd G. Poole, Jefferson City, for Industrial Commission of Missouri.
    George Schwartz, Jefferson City, for Division of Employment Security.
    Leo J. Rozier, Perryville, for Joseph F. Huck, Jr.
   WOLFE, Judge.

Joseph F. Huck, Jr., plaintiff-respondent, brought this action for a judicial review of the findings and decision of the Industrial Commission. The Commission had held that Huck was ineligible for the unemployment compensation which he had claimed. The Circuit Court reversed the Commission, holding Huck eligible for unemployment compensation. The employer and the Commission then appealed from the judgment of the Circuit Court.

The facts of the matter are that Huck was an employee of the Pittsburgh Plate Glass Company. He had been in their employ for about eight years. He was a glass inspector and had seniority rights. His average wage for the year 1958 was $3.85 an hour. He was paid from October 1, 1957 to October 1, 1958, $7,400. He was a member of a union known as Local No. 63 of the Glass, Ceramic and Silica Sand Workers, AFL-CIO-CLC. His union was recognized by the employer as the bargaining representative for the production workers of the factory. On October 6, 1958 a strike was called, and there was a complete stoppage of work.

Huck concedes that he is not entitled to any unemployment compensation by reason of the work stoppage which arose out of the labor dispute (Section 288.040, RSMo 1959, V.A.M.S.). He claims, however, that he comes under an exception contained in that section which, after first treating of the ineligibility of an employee because of a work stoppage, proceeds as follows:

“ * * * in the event he secures other employment from which .he is separated during the existence of the labor dispute, he must have obtained bona fide employment as a permanent employee for at least the major part of each of two weeks in such subsequent employment to terminate his ineligibility.”

His claim was first denied by a deputy of the Division of Employment Security, who stated as his reasons:

“Claimant is ineligible because his grade and class of workers participated . in the stoppage of work due to the labor dispute which began on 10-6-58.
“Although the claimant secured work subsequently to the labor dispute he has not secured permanent work and has not removed the ineligibility.”

Huck then appealed to the Appeals Tribunal from the ruling of the deputy.

A' hearing was had before a referee of the Appeals Tribunal, and this appeal covered the claim of Huck and three others with whom we are not here concerned. The appeal was heard while the strike was still in progress. The testimony as it related to Huck was substantially as follows. He stated that after the strike which idled the glass factory began, he went to Union Local 520 of the Operating Engineers. This union had no connection with the union to which he belonged. It was composed of operatoi s of heavy equipment such as graders, earth movers, and like machines used in construction work. It also had members who operated air compressors. In this field Huck had prior experience. He had operated a large Ingersoll Air Compressor. Although he was not a member of the Operating Engineers Union, he could work on a permit for which he paid $2.00 a week. He stated that he was listed as a permanent employee with the Engineers Union. Through the union he obtained two different jobs of one day’s duration, and on October 14, 1958 he was sent by the union to Hartman-Walsh Painting ComT pany. This company is a Missouri corporation, but the work it was doing was in East St. Louis, Illinois. He worked for this concern from October 14, 1958 to December 8, 1959, at which time the East St. Louis job terminated, and he was no longer employed by them.

He had no work after that, although he kept in touch with the Engineers Union. He stated that he was eligible for an apprentice program that the Engineers Union had, but he did not know how many years’ experience he would be required to have before he could become a member of the union. He stated that he wanted to be a member and intended to seek permanent employment in construction work.

Pie had never given up his membership in the glass workers union, and there was no evidence that he had surrendered his seniority rights or other accumulated benefits with the Pittsburgh Plate Glass Company. He had not resigned as an employee of the company, and when asked if he would return to work at the termination of the strike, he said that he did not know. Upon the foregoing evidence the appeals referee found that any ineligibility which might have resulted for the claimant because of the labor dispute at the employer’s factory had been terminated by the claimant’s obtaining bona fide employment as a permanent employee with another company for the major part of more than two weeks.

The employer appealed this decision to the Commission, and the Commission upon review held:

“The finding of the Referee that claimant obtained permanent employment subsequent to the occurrence of the labor dispute with employer is contrary to the evidence, in that claimant indicated by his maintenance of his insurance and hospitalization program and other benefits with employer that he intended to return to his first employment upon termination of the strike. Claimant has not resigned his seniority with employer, nor has he indicated that he would refuse to return to work upon a settlement of the labor dispute. Claimant further indicated a willingness to return to work for employer upon termination of the strike.
“The findings of the Referee that claimant has removed his ineligibility to receive compensation by reason of employment with another employer is not supported by competent and substantial evidence. Said findings are . further contrary to the law under the evidence.
“The evidence supports the conclusion arrived at by the Deputy that claimant is ineligible for benefits because of a stoppage of work on account of a labor dispute.”

The claimant Huck then brought this action for a judicial review of the decision of the Industrial Commission, and the Circuit Court reversed the Commission. It is from the judgment reversing the Commission that the employer and the Commission prosecute this appeal.

There are constitutional limitations upon judicial review of decisions of administrative agencies such as the Industrial Commission. It is provided: “* * * such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record.” Constitution of Missouri, Article 5, § 22.

The review is based upon the whole record, including the reasonable inferences therefrom and in the light most favorable to the award of the Commission, to determine whether the decision is supported by competent and sufficient evidence. The decision of the administrative agency is not to be set aside unless clearly contrary to the overwhelming weight of the evidence or unauthorized by law. Section 536.140, RSMo 1959, V.A.M.S.; Brown v. Anthony Manufacturing Company, Mo.Sup., 311 S.W.2d 23; Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Meyer v. Industrial Commission of Missouri, 240 Mo.App. 1022, 223 S.W.2d 835.

The burden of proof is upon the claimant to establish his right under the compensation law, and this burden never shifts but remains throughout the trial of the issues upon the party asserting the claim. Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77. The claimant here asserts that he has proven himself within the exceptions set out in Section 288.040, RSMo 1959, V.A. M.S. He claims that he did seek bona fide permanent employment, from which he was separated after he had worked at such employment for a period of more than two weeks.

The question before us is whether or not, under the evidence presented, the Commission was obliged to grant compensation by reason of the quoted portion of Section 288.040, supra.

As stated in Haynes v. Unemployment Compensation Commission, supi a, we seek the true intent of the lawmakers from the words used, if possible. We put upon the language of the Legislature its plain and rational meaning, having in mind its object and purpose.

Section 288.040, subsection 4, starts with the provision that if there is a work stoppage due to a labor dispute, no compensation will be paid to employees unemployed by reason of the work stoppage. Those employees who do not participate in the strike or are not financing it or directly interested in it are not barred from compensation, provided they are not members of the grade or class of workers who are striking. This portion of the section is quite clear and simply bars those employees from compensation where their group strikes or they aid another striking group in the manner stated. It is admitted that Huck was a member of the striking group and consequently did not come within either of the exceptions.

In Meyer v. Industrial Commission of Missouri, 240 Mo.App. 1022, 223 S.W.2d 835, supra, 1. c. 838, we said:

“The statute attempts to reach a neutral position between the employer and employee by the provision denying benefits when the unemployment is due to a strike and further providing that no one who is unemployed shall be denied benefits because of refusing to fill a position where the vacancy is caused by a strike.” (Section 288.050, subsection 1(2) (b) b, RSMo 1959, V.A.M.S.)

It is only equitable that employers should not be taxed for unemployment benefits that would aid employees in a strike against the employers. It is equally apparent that a striking employee should not be barred from compensation if he wishes to abandon his position as a striker and seek permanent work with another employer and is subsequently dismissed from the other employment he obtains.

This is the generally accepted law regardless of the statute. It is also generally stated 'that “in order effectively to terminate his disqualification his subsequent employment must be bona fide, not a device to circumvent the statute, and must completely sever relations between him and his former employer.” 81 C.J.S. Social Security and Public Welfare § 196, page 290; Mark Hopkins, Inc. v. California Employment Commission, 24 Cal.2d 744, 151 P.2d 229, 154 A.L.R. 1081.

Our statute did not change this rule. It added to it the requirement that the new employment, in addition to being bona fide and permanent, must be for at least the major part of each of two weeks’ duration. The strike caused only a temporary suspension of tlie employer-employee relationship as distinguished from the definite unequivocal termination which occurs when the worker quits his job. Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 291 S.W.2d 166, l. c. 176.

Huck had never quit as an employee of the Glass Company. He had earned $7,400 in the twelve months preceding the strike. He refused to say whether or not he intended to return to the Glass Company when the strike ended. All of this lends support to the finding of the Commission that the work which he had as an operator of an air compressor was not bona fide permanent employment and that he was still an employee of the Glass Company, although 'that employment was suspended by the work stoppage.

For these reasons we hold that Huck was not, as a matter of law, entitled to compensation under the statute, and that the decision of the Industrial Commission was not against the overwhelming weight of the evidence. The Circuit Court erred in reversing the findings and decision of the Commission, and the judgment of the Circuit Court is therefore reversed and the decision of the Industrial Commission is affirmed.

ANDERSON, P. J., concurs.

RUDDY, J., not participating.