author: STONE, Presiding Judge.

text:
    J. A. FULKERSON, Plaintiff-Respondent, v. J. H. LAIRD and Betty Laird, Defendants, W. E. Foster, Garnishee-Appellant.
    No. 8643.
    Springfield Court of Appeals. Missouri.
    Nov. 18, 1967.

      Richard D. Moore, Newton C. Brill, West Plains, for garnishee-appellant.
    Friend B. Greene, Eminence, for plaintiff-respondent.
   STONE, Presiding Judge.

This is an appeal by garnishee W. E. Foster from a judgment in the sum of $613.34 entered in favor of plaintiff J. A. Fulkerson and against garnishee on September 23, 1966. In the case out of which the garnishment proceeding arose, a default judgment in the same aggregate amount had been entered in the Circuit Court of Howell County in favor of plaintiff and against defendants J. H. Laird and Betty L. Laird on November 6, 1963. On December 27,1963, a general execution was issued upon that judgment, directed to the Sheriff of Shannon County [Rule 76.06; § 513.040], an adjoining county in which defendants then resided, and made returnable "on the 20th day of January 1964,” twenty-four days after the date of issuance. (All emphasis herein is ours.) This, no doubt, because January 20, 1964, was the third Monday in that month and thus the first day of the next statutory term of the Circuit Court of Howell County [§ 478.300], but nevertheless in plain violation of the mandate of Rule 76.04 that “[ejvery execution issued from any court of record shall be made returnable in not less than 30 days, nor more than 90 days, at the option of the judgment creditor, from the date of issuance.”

Attached to the execution in the transcript on appeal is a “Summons to Garnishee” (hereinafter referred to as the summons) prepared on a printed form. The summons identified itself as “Garnishment under an (sic) General Execution — To W. E. Foster Clerk Garnishee.” (The words “General Execution” were typewritten, the italicized portion was handwritten, and the remainder was printed.) The summons, dated March 27, 1964, and signed by the Sheriff of Shannon County [Rule 90.02; § 525.020], directed garnishee Foster to be and appear before the Circuit Court of Howell County "on the 20th day of April 1964,” the first day of the next statutory term of that court [§ 478.300], to answer interrogatories.

The “Sheriff’s Return” in the space provided for that purpose on the reverse side of the execution was:

“Executed the within Writ in the County of Shannon, State of Missouri, on the 7 day of Nov 1963, by serving same and failed to collect
“And, on the 27th day of March, 1964 summoned W. E. Foster, as Garnishee, copy of the summons being attached hereto and made a part of this return, all in Shannon County, Missouri.”

The italized portion of the first paragraph of the return was handwritten, the remainder of that paragraph was printed, and the second paragraph was typewritten. Obviously, the first paragraph referred to the execution while the second paragraph referred to the summons. The record before us affords no explanation concerning the date inserted in the first paragraph, to wit, November 7, 1963, which was fifty days prior to December 27, 1963, when the execution was issued, and discloses no information (a) as to whether the execution actually was returned into court on or before January 20, 1964, the date specified therein, (b) if so, as to how and when the execution again came into the hands of the Sheriff of Shannon County, or (c) as to what entries pertaining to the execution were made in the “well-bound [execution] book” required to be kept by the Circuit Clerk of Howell County [Rule 76.07; § 513.045], who issued the execution.

The transcript does inform us that garnishee made no answer to the interrogatories exhibited to him [Rules 90.12 and 90.13; §§ 525.130 and 525.140]; that thereafter, to wit, on September 3, 1964, an interlocutory order was made by and in the Circuit Court of Howell County directing garnishee to pay $613.34 into court within ten days thereafter to discharge himself from further liability [Rules 90.06, 90.07 and 90.19; §§ 525.070, 525.080 and 525.200; Cheno-weth v. LaMaster, Mo.App., 342 S.W.2d 500, 501(1)]; and that, garnishee having failed so to discharge himself, plaintiff filed on October 9, 1964, his “Motion for Judgment Against Garnishee” and garnishee filed on November 12, 1964, his “Motion to Quash Execution, Summons to Garnishee and Service of Sheriff’s Return Thereto.”

When these motions finally were heard on September 23, 1966, the Sheriff of Shannon County and garnishee Foster offered testimonial accounts, in some respects contradictory and conflicting, as to what had occurred on March 27, 1964, when the sheriff allegedly undertook to summon garnishee Foster while the latter was acting as clerk of a farm sale advertised as a public auction of property “jointly owned” by defendant J. H. Laird and one Bebee. However, we need not prolong this opinion by digesting or dwelling upon the testimony. For, if the sheriff’s narrative be accepted in its entirety by us, as it was by the trial court, nevertheless as a matter of law the judgment for plaintiff cannot stand for reasons to which we now turn.

The primary thrust of garnishee’s trial complaint, and likewise of his appellate attack, has been addressed to the alleged insufficiency of the sheriff’s return (as hereinbefore quoted in its entirety), because the return did not affirmatively show that the sheriff declared to the garnishee “that he [attached] in his hands all debts due from him to the defendant . . . .” Rule 85.21(e); § 521.170(5). There is indeed substance to this point. Notice of garnishment [see Rule 90.03; § 525.040] is the means by which the jurisdiction of the court is established over the res, i.e., over the property or credits garnished, and thus is an indispensable prerequisite to such jurisdiction. Blackburn Motor Co. v. Benjamin Motor Co., Mo.App., 340 S.W.2d 155, 159; C. Rallo Contracting Co. v. Blong, Mo.App., 313 S.W.2d 734, 737(1). Since the purpose of the summons, as distinguished from the notice, is to bring the garnishee personally into court, he may, by appearing generally and answering interrogatories, waive any defect as to service of summons and confer jurisdiction over his person [C. Rallo Contracting Co., supra, 313 S.W.2d at 737(2), and cases there cited]; but jurisdiction over the res can be conferred neither by waiver nor by consent. Blackburn Motor Co., supra, 340 S.W.2d at 159; Federal Truck Co. of St. Louis v. Mayer, 216 Mo.App. 443, 270 S.W. 407, 409(1). Garnishment is purely a statutory proceeding in derogation of the common law [Flynn v. Janssen, Mo., 284 S.W.2d 421, 422(2); Trinidad Asphalt Mfg. Co. v. Standard Oil Co., 214 Mo.App. 115, 258 S.W. 64, 66; 6 Am.Jur.2d Attachment and Garnishment § 9, p. 567; 38 C.J.S. Garnishment § 1(b), p. 201], and strict compliance with all requirements formerly imposed only by statutes but now enjoined also by our civil rules is indubitably essential to confer and support jurisdiction over the res in a garnishment proceeding. Blackburn Motor Co., supra, 340 S.W.2d at 159; C. Rallo Contracting Co., supra, 313 S.W.2d at 737; Milliken v. Armour & Co., 231 Mo.App. 662, 104 S.W.2d 1027, 1028(3) ; State ex rel. Shaw State Bank v. Pfeffle, 220 Mo.App. 676, 293 S.W. 512, 516(12); Federal Truck Co. of St. Louis, supra, 216 Mo.App. at 450, 270 S.W. at 409(2).

So, it has been held in several Missouri cases that, to confer jurisdiction over the res in a garnishment proceeding, the officer’s return upon the execution must affirmatively show substantial compliance with essential requirements including the injunction that (if “goods and chattels, money or evidences of debt” are being attached but are “not accessible”) the officer “shall declare to the person in possession thereof that he attaches the same in his hands” [Rule 85.21(d); § 521.170(4)] or (if “credits” are being attached) the officer “shall declare to the debtor of the defendant that he attaches in his hands all debts due from him to the defendant . . . .” Rule 85.21(e); § 521.170(5). Howell v. Sherwood, 213 Mo. 565, 576, 112 S.W. 50, 52-53(1); Kurre v. American Indemnity Co. of Galveston, Tex., 223 Mo. App. 406, 413, 17 S.W.2d 685, 687(2); State ex rel. Shaw State Bank, supra, 220 Mo.App. at 686, 293 S.W. at 517(15); Hopkins v. Henson, 205 Mo.App. 384, 387—389, 224 S.W. 119(1); Kansas & T. Coal Co. v. Adams, 99 Mo.App. 474, 480, 74 S.W. 158, 160. Certainly the sheriff’s return in the instant case reflected “no constructive seizure” of the res, “no declaration of sequestration,” as is contemplated and required by law. Hopkins, supra, 205 Mo.App. at 387, 224 S.W. at 119; Kansas & T. Coal Co., supra, 99 Mo.App. at 479-480, 74 S.W. at 160. In fact, the return did not even show that a copy of the summons to garnishee was delivered to or left with garnishee Foster; and there has been no request for leave to amend the return at any stage of the litigation. Contrast Kurre, supra, 223 Mo.App. at 413-414, 17 S.W.2d at 687(6, 7). The return was insufficient to confer jurisdiction over the res, and the judgment against garnishee was void. Howell, supra, 213 Mo. at 576, 112 S.W. at 53(2); Federal Truck Co. of St. Louis, supra, 216 Mo.App. at 450, 451, 270 S.W. at 409.

The judgment cannot stand for another reason not suggested by counsel but patent on the record and so basic that it should not be passed without mention. Garnishment is in aid of an execution and is merely “an ancillary remedy to obtain payment of the judgment.” Harrison v. Harrison, Mo.App., 339 S.W.2d 509, 517 (10). See Ivy v. LaRue, Mo.App., 158 S.W.2d 232, 233(1). A valid judgment and a valid execution are indispensable prerequisites to a valid garnishment. Flynn, supra, 284 S.W.2d at 422; Harrison, supra, 339 S.W.2d at 517; Barnes v. Hilton, Mo. App., 323 S.W.2d 831, 835(6); Gilbert v. Malan, 231 Mo.App. 469, 483(9), 100 S.W. 2d 606, 615(12). And Rule 90.02 specifically requires that “\_f\he return date of the summons to garnishee shall be the return date of the execution.”

As we have seen, the execution in the instant case was issued on December 27, 1963, and was returnable on January 20, 1964. Assuming arguendo the validity of the execution from the date of issuance to and including the date of return notwithstanding the fact that it was made returnable in less than thirty days contrary to the plain mandate of Rule 76.04, it undoubtedly became functus officio after January 20, 1964, the return date specified therein. It then had spent its force, and all subsequent proceedings under it were null and void. Bank of Missouri v. Bray, 37 Mo. 194, 195(1); City of Jefferson v. Curry, 71 Mo. 85(1); McDonald v. Gronefeld, 45 Mo. 28; Chasnoff v. Porto, 140 Conn. 267, 99 A.2d 189, 192(1); Hicks v. Bailey, Ky., 272 S.W.2d 32(1); Claude Neon, Inc. v. Birrell, D.C.N.Y., 177 F.Supp. 706, 711-712(5); Ludtke v. Bankers’ Trust Co., Tex. Civ.App., 251 S.W. 600, 603(5) ; Preissman v. Crockett, 194 Md. 51, 69 A.2d 797, 800 (4); Fredd v. Darnell, 107 N.J.Eq. 249, 152 A. 236, 237(2); 33 C.J.S. Executions § 93, l.c. 238.

Yet the “Summons to Garnishee,” sub-captioned as “Garnishment under an (sic) General Execution,” was issued on March 27, 1964, and was made returnable on April 20, 1964. Obviously, this summons could not have been issued “under” or in aid of the execution which had become functus officio after January 20, 1964, its return date. The garnishment proceeding was without legal foundation or authority, and the judgment entered therein was void.

Plaintiff-respondent has filed nothing in this court other than an unverified “Motion to Dismiss or Affirm” on the sole ground that garnishee-appellant did not deliver a copy of his brief to plaintiff forty-five days before the date of hearing. Rule 83.06(a). The verified answer of garnishee’s counsel, captioned as a “Motion in Opposition . . .,” was that a typewritten copy of their brief had been mailed to plaintiff’s counsel, who resides in an adjoining county, on the forty-sixth day before the date of hearing and should have been delivered to him on the forty-fifth day, and that, as confirmed by the printer’s proof of service filed in this court, copies of the printed brief were mailed to plaintiff’s counsel on the forty-second day before the date of hearing. Plaintiff’s counsel made no reply to this verified answer and sought no extension of time within which to file a brief. In the stated circumstances, “the interests of justice . . require” [Rule 83.09] that plaintiff’s motion to dismiss be overruled and that the appeal be determined on its merits. Willis v. Willis, Mo.App., 274 S.W.2d 621, 624(1).

Accordingly, (a) plaintiff’s-respondent’s “Motion to Dismiss, or Affirm” is overruled, (b) garnishee’s-appellant’s verified answer, captioned as a motion, is stricken from the motion docket, and (c) the judgment in favor of plaintiff and against garnishee-appellant is reversed.

HOGAN and TITUS, JJ., concur.

      . All references to rules are to the Supreme Court Rules of Civil Procedure, V.A.M.R., and all statutory references are to RSMo 1959, V.A.M.S.


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    J. R. WATKINS COMPANY, Inc., Plaintiff-Respondent, v. Marvin Eugene SMITH, Defendant, and J. E. Case, Sr. and J. E. Case, Jr., Defendants-Appellants.
    No. 24750.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.

      Forge & Cochell, C. John Forge, Jr., Raytown, for appellants.
    Burrus & Burrus, Rufus Burrus, Independence, for respondent.
   CROSS, Judge.

Plaintiff Watkins Products, Inc., formerly known as J. R. Watkins Company, is a manufacturer and wholesale supplier of goods and merchandise consisting principally of foods, medicines, household articles, toiletries, feed supplements and insecticides sold door to door by franchised distributors. Watkins brought this suit against defendant Marvin Eugene Smith, as the principal debtor, and defendants J. E. Case, Sr. and J. E. Case, Jr., as his sureties, to recover an unpaid balance of indebtedness due it in the amount of $3,793.05, incurred by defendant Smith while acting as one of its authorized distributors. The case was tried before a jury. Defendant Smith had filed no pleading and was not present at the trial. At the conclusion of all the evidence, plaintiff dismissed the action, without prejudice, as to defendant Smith. Thereupon, at the direction of the trial court, the jury returned a verdict in favor of plaintiff, in the entire amount prayed for, against the defendant sureties, J. E. Case, Sr. and J. E. Case, Jr., who now appeal from the judgment.

Appellants charge that the trial court erred in directing the verdict for plaintiff. As a basis for this contention appellants assert that three items charged against Smith’s account were outside the scope of their surety contract and should not have been included in the jury’s verdict. In order to determine these questions, we look first to the interacting relationships and obligations of the parties involved.

On September 1, 1963, Watkins Products, Inc. and Marvin E. Smith entered into a written agreement designating Watkins as “Seller” and Smith as “Purchaser”, whereby Watkins agreed to sell and Smith agreed to buy Watkins products at wholesale prices for resale, and at the termination of the agreement “to pay the whole amount therefor then remaining unpaid.” The legal relationship of the parties was defined by the following quoted provision of the contract : “It is expressly understood and agreed that the relationship hereunder is solely that of vendor on the part of the Seller and vendee on the part of the Purchaser, * * * ”

The surety agreement is also dated September 1, 1963, bears the signatures of defendants J. E. Case and J. E. Case, Jr., and provides in pertinent part as follows:

“In consideration of One Dollar to us in hand paid, receipt of which is hereby acknowledged, by Watkins Products Inc., a corporation (hereinafter called the ‘Seller’) and the extension of credit and/or the sale and delivery of merchandise to Marvin Eugene Smith * * * of Kansas City, Missouri * * * (hereinafter called the ‘Purchaser’), we hereby jointly and severally, absolutely and unconditionally insure, guarantee and promise due payment at Winona, Minnesota, but not exceeding Five Thousand ($5,-000.00) * * * Dollars in the aggregate, of all indebtedness to the Seller now ozving or hereafter incurred, by or for said Purchaser, according to the terms and conditions of any agreement made by the Purchaser and the Seller regardless of his ability or willingness to pay the same, and consent that without affecting our liability, any or all of the indebtedness may be changed in form, by note or otherwise, * * * ” (Emphasis supplied.)

It is of special significance that the foregoing quoted surety undertaking is not limited to indebtedness incurred by Smith for merchandise purchased from Watkins. Appellants are obligated by its provisions to pay any indebtedness to Watkins, within the specified amount, incurred either before or during the term of agreement by or for Smith according to the terms and conditions of any agreement between Smith and Watkins.

Plaintiff’s evidence consists of business records produced by witness Frank J. Kinsey, Jr., manager of plaintiff’s collection department, in charge of accounts receivable. The witness identified certain records as having been kept under his custody and control, and otherwise qualified them as admissible evidence under the Business Records as Evidence Law. It is shown by the records of Smith’s account that the agreement between him and Watkins remained in effect from and after September 1, 1963, the date of its execution, until October 21, 1964, on which date the agreement was “terminated” by Watkins. During that time Smith purchased and received goods from Watkins, for which his account reflects charges in the total sum of $26,685.93. Total credits are shown in the amount of $22,892.88. The unpaid balance of Smith’s account on the terminal date was $3,793.05.

The first item of the Smith account disputed by appellants as being outside the scope of their surety agreement is a charge for merchandise in the amount of $761.11, bearing the date September 5, 1963, which indicates that the merchandise for which it was entered was delivered F.O.B. on that day. However, there is also in evidence an invoice for the merchandise in question which shows a shipping date of August 29, 1963. On this basis appellants claim that the sales transaction was made prior to the date of their surety agreement and that therefore they are not liable, as guarantors, for the debt arising therefrom. It is immaterial whether the debt arose on August 29, 1963, or on September 5, 1963, because in either event appellants are liable for its payment as guarantors. In unmistakable language the surety agreement executed on September 1, 1963, obligates them, in return for consideration provided, to make “due payment * * * of all indebtedness to the Seller now owing or hereafter incurred.” (Emphasis added.) In enforcing that agreement it was the court’s duty to give effect to it as written, without regard to its wisdom or folly, 17A C.J.S. Contracts § 296(4), pp. 98-101, Tamko Asphalt Products, Inc. v. Fenix, Mo.App., 321 S.W.2d 527. Even if it be assumed that the sales transaction was completed on August 29th, 1963, and prior to execution of the surety agreement on September 1st, 1963, appellants are bound by the clear terms of that undertaking to pay any pre-existing debt owed by Smith to Watkins pursuant to any agreement they may have made.

Appellants also deny liability for merchandise charged to Smith’s account in the amount of $2,785.84 on September 11, 1963. As respects the origin of that charge, the business records in evidence disclose the following circumstances: On September 11, 1963, one Donald D. Braun of Wichita, Kansas and defendant Marvin E. Smith entered .into a written contract, an originally executed copy of which was introduced in evidence. That instrument recites that Braun is a “retiring purchaser”, that Smith is a “new purchaser”, and further recites an agreement as follows: “The attached itemized list of goods correctly shows the kind and quantity of goods which Donald D. Braun, the undersigned retiring Purchaser, now has on hand in good condition, to be returned to WATKINS PRODUCTS, INC., F.O.B. cars at Winona, Minnesota, or other regular manufacturing point of the Company as provided for in his agreement with it, which goods, Marvin E. Smith, the undersigned new Purchaser hereby purchases and for which he agrees to pay said Company in accordance with his agreement. And the undersigned hereby request said Company to credit the retiring Purchaser, and charge the new Purchaser, with the goods listed, at said Company’s regular and current wholesale prices.” The agreement is attested by Braun’s and Smith’s original and duly witnessed signatures.

Pursuant to the request of Braun and Smith expressed in their agreement, and as shown by business records in evidence, Watkins credited Braun’s account with the sum of $2,785.24 by duly transferring the $2,785.24 charge for the merchandise from Braun’s account to Smith’s and same is included in Smith’s account as it now stands in demand. It was admitted by witness Kinsey that the merchandise was not returned by Braun to Watkins for re-shipment to Smith. It is contended by appellants for that reason, and because Smith took possession of the goods directly from Braun, that the transaction was a sale effected by Braun to Smith, for which Smith became indebted to Braun. Therefore, say appellants, Smith never became indebted to Watkins so as to invoke any liability on their part as sureties. This contention is without merit. It is clearly shown by the documents referred to that Braun surrendered his ownership of the merchandise to Watkins for the credit extended him therefor, and that Watkins in turn sold the merchandise to Smith and charged his account for the purchase price. It is of no significance that there was no physical delivery of the goods by Watkins to Smith. “Where the goods are at the time of the sale in the possession of a third person, actual manual delivery is not necessary, but there must be a valid constructive delivery. It is sufficient if the goods are pointed out and turned over to the buyer, or the third person has notice of the sale, and agrees to hold the goods for the buyer, in which case he becomes the bailee of the buyer.” 77 C.J.S. Sales § 162, pp. 886-887. Also see Glass v. Gelvin, Mo.Sup., 80 Mo. 297. The written agreement between Braun and Smith is not susceptible of interpretation that there was a sales transaction between Braun and Smith, or that Smith became indebted to Braun for the goods. Consequently we hold that the charge entered against Smith’s account was “indebtedness to the Seller (Watkins Products, Inc.) * * * incurred, by or for said Purchaser (Smith), according to the terms and conditions of any agreement made by the Purchaser with the Seller.” The indebtedness is therefore covered by the surety agreement.

The third item of account resisted by appellants also involves a transaction between Smith and Braun pursuant to a written agreement and is also evidenced by documentary proof introduced by Watkins, same being an originally executed copy of the agreement. That document is dated August 28, 1963, designates Braun as “the retiring distributor” and Smith as “the new distributor”, and provides as follows: “This itemized list of office equipment and fixtures and supplies correctly shows the kind and quantity of such which Donald D. Braun the undersigned retiring Distributor, has on hand in good condition and hereby agrees to sell at prices stated hereon to Marvin E. Smith the undersigned new Distributor who hereby agrees to purchase and pay for said office equipment and fixtures, etc., at the prices agreed to hereon (totalling $250.00). The undersigned retiring Distributor and the new Distributor request Watkins Products, Inc. to credit the retiring Distributor and charge the new Distributor at the prices set forth and agreed to hereon.” The office equipment, fixtures and supplies mentioned are duly itemized and the agreement bears the original witnessed signatures of Donald D. Braun and Marvin E. Smith. Business records introduced in evidence by Watkins disclose that on September 11, 1963, pursuant to Braun’s and Smith’s direction Braun’s account was credited with the $250.00 purchase price of the office miscellanea and that Smith’s account was charged therewith instead.

The foregoing described transaction between Smith and Braun, unlike the one previously discussed, was in fact an actual sale of the goods involved, by Braun to Smith, whereby Smith became indebted to Braun for the purchase price. However, it is further apparent that Braun assigned his interest as a debt-holder to Watkins in consideration of credit given him by Watkins for the amount of the sale price. Watkins thereby became the holder of the debt and as a result there was created “an indebtedness to the Seller (Watkins) * * incurred by or for said purchaser (Smith) according to the terms and conditions of any agreement made by the Purchaser with the Seller.” Again, it is our holding that the indebtedness is within the scope of the surety agreement.

Appellants have introduced no evidence whatsoever to contradict any of the foregoing facts Watkins has established by documentary proof. Nor is it disputed by appellants that the surety contract was in fact executed by them and that it stands in force and effect as a binding agreement. Appellants have cited J. R. Watkins Company v. Henson, Mo.App., 319 S.W.2d 21, as authority for their contention that the debts arising from the Smith-Braun transactions are not within the scope of their guaranty. The case is not in point because the surety agreement there in controversy was materially different from the undertaking in this case. The Henson agreement obligated the sureties to pay only for “goods and other articles (and transportation charges thereon) manufactured or sold by it (Watkins) as the Purchaser may reasonably require for sale.” The agreement in the instant case binds the defendant sureties to pay all indebtedness to Watkins incurred by or for Smith, their principal, pursuant to any agreement between Smith and Watkins, without qualification or limitation as to its nature.

We conclude that the trial court did not err in directing a verdict for plaintiff Watkins because appellants have made no showing of any probative facts that would constitute a defense against liability under their surety obligation. It has long been the rule that when a plaintiff’s proof is documentary and undisputed the trial court may direct a verdict for the plaintiff. Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691; United States Fidelity & Guaranty Co. v. Calvin, Mo.App., 7 S.W.2d 732; Cieslinski v. Clark, Mo.App., 223 S.W. 2d 139.

The judgment is affirmed.

All concur.


author: BRADY, Commissioner.

text:
    Alma HURST, Plaintiff-Appellant, v. CHASE HOTEL, INC., a Corporation, and York Garage Company, Defendants, Chase Hotel, Inc., a Corporation, Defendant-Respondent.
    No. 32179.
    St. Louis Court of Appeals. Missouri.
    Oct. 17, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 28, 1967.
    Application to Transfer Denied Jan. 8, 1968.
    Goldstein & Price, Gary T. Sacks, St. Louis, Bernard & Davidson, Granite City, Ill., for plaintiff-appellant.
    Moser, Marsalek, Carpenter, Cleary & Jaeckel, Morris E. Stokes, F. Douglas O’Leary, St. Louis, for defendant-respondent.
   BRADY, Commissioner.

Plaintiff brought suit to recover damages for personal injuries sustained in a fall in the parking garage of defendant, Chase Hotel, Inc. A motion to dismiss as to the defendant York Garage Company was sustained and no appeal being taken from that decision we will hereafter refer to the defendant Chase Hotel, Inc. as “defendant”. The jury returned a verdict in plaintiff’s favor in the amount of $9,000.00. The judgment entered thereon was set aside by the trial court which granted defendant’s after-trial motion for judgment in accordance with its motion for directed verdict on the ground plaintiff had failed to make a submissible case. It follows this court is to consider the evidence in the light most favorable to the plaintiff who is entitled to the benefit of all favorable inferences.

In her petition plaintiff alleged she was an invitee of the defendant at the time of the accident and that her fall resulted from defendant’s negligence in that the decline from the landing to the floor of the parking ramp “ * * * was constructed in such a sharp and substantial manner that persons using the entrance to enter the said Parking Ramp from the second floor of the Hotel would suddenly step onto the said decline, their balance being affected, particularly those persons who were females and wearing high heeled shoes.”; that no warnings or signs were present; and that defendant failed to provide a handrail. Defendant’s answer admitted ownership of the hotel and garage, denied the remaining allegations, and pleaded the contributory negligence of plaintiff.

The parking garage was operated in connection with defendant’s hotel. Plaintiff, a 65-year-old lady, had never been in this garage before. She was driven by friends to the parking garage and entered the hotel to attend a function being held there. At the conclusion of this function the plaintiff’s party, consisting of the Carters, the Kessmans, herself and her husband whom they had met at the function, decided to leave. In order to do so it was necessary to leave the hotel and go into the garage facility. This they did by Ramp 8, a different ramp than that by which they had entered. Mrs. Carter then discovered that she had left a gift behind and plaintiff’s husband went back with her to find it. Plaintiff, the Kessmans, and Mr. Carter continued on their way. The doorway through which they left the hotel and entered the garage is approached from inside the hotel by the means of steps to a landing upon which the door is located. The concrete floor comprising this landing is level both on the hotel and garage sides of the door. On the garage side of the door the level floor extends out into the garage an unspecified distance but one which is sufficient for those entering or leaving to stand upon. The garage floor itself is concrete and slopes upward to the level of the landing floor. The evidence refers to this slope as a “cove” area. This slope or cove extends for about two feet beyond the end of the landing and in that distance falls some six inches. The plaintiff’s expert was asked the following hypothetical question based upon an assumption a person of the build of the plaintiff was “ * * * standing with their back six inches from the door after it was closed on the level area, and assuming she would testify under oath she had good eyesight, normal eyesight, and assuming she would testify under oath that she had good lighting, there was nothing affected her ability to see, and assuming that she were to look down and not have any furs or other garment that would obstruct her vision, now, would you tell the jury whether she could see the line that separated the level part from the sloping area ?” His answer was: “If she would make this inspection, as you describe it, I would think that it would be possible for her to see it. Q Assuming if she did everything — I want you to assume all the facts I hypothesized, if she looked down, it would be visible to anybody, would it not? A It would, but I don’t know why she would look down.” This witness’s further testimony was that unless a person looked downward he would not be aware of the slope.

Plaintiff’s party left the hotel in the following manner. The door opened outward into the garage. Mr. Carter testified that he stood at the door frame on the inside of the door and held it open with his arm. Mr. Kessman went through the door first and proceeded to go to his automobile. His wife came through next and then the plaintiff. After they got through he testified he came through the door and it closed itself. The plaintiff had a slightly different version of the parties going through the door. Her testimony is that Mr. Kessman went first and went on to get the car. Mr. Carter opened the door but “ * * * he took Mrs. Kessman right straight out, and I just barely stepped out of the door, slightly to the right and stood there.” In any event, it is clear that under either Mr. Carter’s or the plaintiff’s version the door was open while those preceding her left and that the plaintiff stood for some moments on the landing on the garage side of the door. What happened next is perhaps best explained in the language of plaintiff’s testimony: “Q Now, as you stood there, Ma’am, where were you looking? A I was looking right over the automobile where they, Mrs. Kess-man and Mr. Carter was. Q And what did you see as you looked over there ? A Well, I just saw that Mrs. Carter — or Mrs. Kessman wasn’t feeling too good. Q Now, would you give the court and jury and (sic) idea of how long of — well, what happened next? A Well, I stood there very close to the wall, just watching them, the car parked real, up close there, and the automobile which Mr. Kessman got came down right past over where I was looking. Q And then what happened? A I just slightly turned.to the left and took one step to go to the automobile and just stepped into space. Q And then what happened? A Well, I fell.”

Plaintiff was asked whether she was “ * * * complaining the lighting had anything to do with your accident * * Her answer was that she was not. The testimony of other witnesses indicated the lighting was such that one could see things clearly. Plaintiff further testified that there was nothing in the area that in any way affected her ability to see and that after she went through the door out onto the landing she did not look downward again but kept looking out toward the automobile where her friends were.

In Ecker v. Big Bend Bank, Mo.App., 407 S.W.2d 45, l.c. [2-4], this court set out the basic rule applicable to situations of the nature here involved. Therein we said: “The judicial reports of this State make abundantly clear our approval of the principle formulated in Restatement, Second, Torts, § 343, p. 215, imposing liability, under certain conditions, upon an invitor for bodily harm to invitee caused by a natural or artificial condition on the former’s premises. See Mo.Digest, Negligence, The Restatement reads as follows: ‘A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. * * ■ * ’ (Emphasis supplied.) It is equally well settled that the basis for imposing liability is the invitor’s superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. It follows that where the danger is or should be as well known to the invitee as to the invitor, the latter has no duty to warn of such danger and incurs no liability for injury to the invitee resulting from the danger. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952, l.c. 957.” The basis for that part of the above quotation following the recitation of the Restatement is to be found in § 343A. of the Restatement which reads as follows: “(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

“While a business invitee cannot fasten liability upon the proprietor of a store by failing or neglecting to see that which is perfectly obvious to a person in possession of his faculties, there is no exact test or formula by which it may be determined whether or not a condition is so open and obvious that one is bound to see it. Each case must turn upon its own facts and circumstances. Summa v. Morgan Real Estate Co., supra, 165 S.W.2d 390, 393.” Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, l.c. 630. The facts and circumstances shown in the instant appeal conclusively demonstrate that plaintiff stood for a few moments upon the landing on the garage side of the door and thus had an opportunity to see the slope; at that time or immediately before as she was coming out of the door she had an opportunity to view her companions as they walked through this area; and these premises were well lighted and there was nothing to prevent the plaintiff from seeing this condition. Her action in looking outward toward the automobile where her companions had congregated renders this case analogous to Cates v. Evans, Mo.App., 142 S.W.2d 654, l.c. [3, 4]. In Cates the plaintiff was looking at a show window in another business establishment and failed to negotiate a stepdown. As in the instant appeal there was no complaint about the lighting. It was there held (Cates v. Evans, supra, l.c. 657): “ * * * The evidence wholly fails to establish negligence on the part of defendants. The only reasonable conclusion that we can arrive at is that plaintiff fell, while gazing into the show window and paying no attention to how or where she stepped as she made her exit from defendants’ store. To hold defendants liable under the facts in this case would make them liable as insurers and not because of negligence. (Cited cases.)” Another case particularly in point is Boyd v. Logan Jones Dry Goods Company, 340 Mo. 1100, 104 S.W.2d 348, which involved a diagonal step alleged to have been dangerously constructed. The court rejected that contention and pointed out that the step was wide enough for a secure foothold; that it was well lighted; and that others exercising ordinary care could walk over it safely. Under these conditions the court in Boyd held that there was not sufficient evidence of negligent construction to go to the jury.

We hold the trial court correctly ruled defendant’s after-trial motion for judgment in accordance with its motion for directed verdict. That decision renders superfluous any consideration of the other allegations of prejudicial error. The judgment is affirmed.

PER CURIAM:

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

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


author: SPERRY, Commissioner.

text:
    KANSAS CITY, Missouri, Plaintiff-Appellant, v. SCHIFMAN SALES, INC., Defendant-Respondent.
    No. 24628.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.
    Application to Transfer Denied Jan. 8, 1968.

      Herbert C. Hoffman, City Counselor, George L. DeBitetto, Associate City Counselor, Jack R. Reed, Asst. City Counselor, Kansas City, Mo., for appellant.
    Loeb H. Granoff, Rich, Rich & Granoff, Kansas City, Mo., for respondent.
   SPERRY, Commissioner.

Kansas City, Missouri, a municipal corporation, charged defendant, Schifman Sales, Inc., with being in violation of' Section 30.190, Revised Ordinances of Kansas City, Mo. In Municipal court defendant was found guilty and fined $400.00 and costs. Defendant appealed to the circuit court where, on trial to the court, it was ordered that defendant be discharged. Kansas City appeals.

The ordinance above referred to reads, in part, as follows:

"Any person required by the provisions of this chapter to obtain an occupational license who shall engage in any business, occupation, pursuit, profession or trade, or in keeping or maintaining any institution, establishment, article, utility or commodity for which such a license is required, without first procuring and paying for such license; * * * shall be guilty of a misdemeanor”. (Emphasis ours). Schifman Sales, Inc., has no license.

For some years prior to March 11, 1963, Mr. David Schifman was a salesman, an employee of Schifman Printing Company. He sold its products exclusively and was under its control and direction. The printing company had two other salesmen in its employ. It is agreed that Mr. Schifman was not then required to pay an occupational tax, by reason of the provisions of the following ordinance, quoted in part:

“Sec. 30.2300. SALESMEN.—
“ * * *. A salesman is any person who sells, offers for sale or solicits orders for any article of merchandise, or other things of value or pretended value, within the city; provided, that this definition shall not include a regular employee of business houses or concerns when engaged in soliciting or taking orders for his employer”. (Emphasis ours).

Plaintiff’s counsel stated to the court that: “Mr. Schifman was an employee or salesman for the Schifman Printing Company for a number of years and then in 1963 he incorporated himself, you might say, because then the salary that he had been receiving, or commissions, were diverted to the Schifman Sales Company, which is the corporation which is defendant here. As a salesman or an employee of the printing company he did not have to have an occupation license. We, the City, contend that the corporation which he formed in 1963 should have an occupation license * * * »

Mr. Schifman is the sole stockholder of the corporation. He organized it upon the advice of counsel in order to take advantage of federal laws which permit him to set up a pension plan for himself. Since incorporation he continues to sell for Schifman Printing Company in the same manner that he did prior thereto.

Plaintiff contends that a corporation cannot be an “employee”; that respondent cannot, therefore, be an employee of Schifman Printing Company. Plaintiff says that respondent is a sales agent, or agency, under the following ordinance:

“Sec. 30.2290. SALES AGENT OR AGENCY. * * *
“Receiving gross annual commissions, fees, charges or compensation of $5,000.00 or less, per year . . . $25.00

Following are provisions for a gradual increase in license fees, based on dollar increase in sales volume. It contains no definition of a “Sales Agent or Agency”, nor any other printed matter except as to graduated license fees. Plaintiff’s position here is that defendant is a sales agent, under the provision of this section.

Defendant now sells the same merchandise for Schifman Printing Company that Mr. Schifman formerly sold for it as an employee-salesman, but the commissions thereon go to defendant, where they are disbursed. The evidence was to the effect that the tax rate on gross receipts, wholesale and retail, (as paid by Schifman Printing Co.) is one dollar per thousand but that it is higher for a sales agency because the rate levied is on commissions, not gross receipts. Mr. Hayes, Commissioner of Revenue and in control of the department administering occupation licenses, testified to the effect that an employee of a company is on its payroll and his income is subject to withholding taxes, while a sales agent or agency is an independent operator and its income is not subject to withholding taxes; that, while an independent agent or agency may or may not be subject to a certain degree of control by the principal, that would not make it an “employee”; that there are two classifications for occupation licensing purposes in this area, employee and independent agent; that several factors are considered in making the distinction.

Mr. Coleman, municipal revenue agent, audited the records of defendant. He stated that it had paid no license fees; that he found no contract of any kind between defendant and Schifman Printing Co.; that defendant received commissions on sales from Schifman Printing Co., and paid David Schifman compensation from said receipts; that commissions paid to defendant were based on sales made for defendant by the printing company, upon which the printing company had paid taxes to plaintiff; that, since defendant is a corporation, it is required to be licensed in order to engage in business.

“Sec. 30.260, Business, etc. for which license required” was introduced in evidence. It provides, briefly, that every corporation (and others named) engaged in any business specified in article II, shall procure and pay for a license from the city, the fees therefor to be in amounts as specified in the ordinances.

Mr. Burke, a C. P. A., testified that he had, for many years, done accounting work for Schifman Printing Co. and for defendant; that, prior to incorporation of defendant company, Mr. David Schifman was a full time salesman for the printing company and subject to its exclusive direction and control; that it also had, and now has, two other salesmen employees; that David Schifman incorporated himself in order to qualify for a pension plan, which has not been established; that, prior to the incorporation, the printing company paid Mr. Schifman commissions and he paid his own expenses therefrom, including taxes; that, since incorporation, the printing company pays commissions to defendant corporation, which pays Mr. Schifman after deducting and paying his expenses, and Schifman’s federal and state taxes.

Plaintiff contends that since defendant is a corporation, it cannot be an employee of Schifman Printing Co. and, therefore, exempt from license tax. A corporation is a legal entity separate and apart from its individual stockholders. Webster's New International Dictionary, Sec. Ed. It’s property and business is controlled and managed by its board of directors, consisting of not less than three. Sections 351.310 and 351.-315 RSMo 1959, V.A.M.S. The board of •directors would have the legal right to supervise, direct and control the number of and activities of employees of the corporation, and to control the nature and course •of the business in which the corporation engages. It could determine what products the corporation would sell, in what manner and for whom.

In 56 C.J.S. Master and Servant § lb, page 24, it is said:

“Generally speaking a ‘servant’ or ‘employee’ is a person who renders service to another, usually for wages, salary, or other financial consideration, and who in the performance of such service is entirely subject to the direction and control of the other, such other being respectively the ‘master’ or ‘employer’ * * ”.

In 2 C.J.S. Agency § 2e distinctions between the relationships of agent and master and servant are discussed. It is said that they are essentially similar and that the real difference is one of degree only.

The court said in Kourik v. English, 340 Mo. 367, 100 S.W.2d 901, 905:

“ * * *. While it would seem to be a misconception of the relation of master and servant, there are cases which have said that such relation may exist between corporations. Alabama Power Co. v. Bodine, 213 Ala. 627, 105 So. 869, but see also Alabama Power Co. v. Key, 224 Ala. 286, 140 So. 233; McWilliams v. Detroit Central Mills Co., 31 Mich. 274. Both of these cases make a positive statement as to such a relation without citation of authority, and they perhaps might have reached the same result on the theory that the corporation held liable violated a duty owed directly to the plaintiff therein. See Lowery v. Kansas City, 337 Mo. 47, 85 S.W.(2d) 104, loc. cit. 110, 111. It is, of course, true that one corporation can be the agent of another. 2 Am.Jur. 22, par. 15; American Law Institute, Restatement, Agency, 64, § 21, but undoubtedly such an ‘agency contemplates contractual liability arising from the acts of the agent’. * * *

Defendant’s position, here and in the trial court, is that it is the alter-ego of Mr. Schifman; and that is the theory upon which the trial court ruled the case.

In 18 Am.Jur. 2nd, Sec. 14, it is said:

“The doctrine that a corporation is a legal entity existing separate and apart from the persons composing it is a legal theory introduced for the purpose of convenience and to subserve the ends of justice. The concept cannot, therefore, he extended to a point beyond its reason and policy, and when invoked in support of an end subversive to this policy, will be disregarded by the courts. Thus, in an appropriate case and in furtherance of the ends of justice, a corporation and the individual or individuals owning all its stock and assets will be treated as identical. * * *

And, in Sec. 15, it is said that a corporation, for most purposes, is a distinct entity even though all of its stock, except qualifying shares, is owned by a single individual ; the concept of corporate legal entity cannot be extended beyond its reason and policy; in a proper case, in furtherance of the ends of justice, a corporation, its assets and its stockholders, will be treated as identical; the principle of piercing the fiction of corporate entity is to be applied cautiously, and each case must rest upon its own facts.

In Saxton v. St. Louis Stair Co., 410 S.W.2d 369, 377 (Mo.App.) the court said that the individual stockholders of a corporation may follow a course of conduct indicating that they operated by mutual agreement outside the confines of the corporation; that, in such cases, the corporate veil should be pierced.

In First National Bank in Canyon v. Gamble, 134 Tex. 112, 132 S.W.2d 100, 103, 125 A.L.R. 265, 269, it was said that the rule disregarding the corporate existence should not be applied unless there is such unity that the separateness of the corporation has ceased and “the facts are such that an adherence to the fiction of the separate existence of the corporation would, under the particular circumstances, sanction fraud or promote injustice”,

In the case before us there is no claim that fraud is involved. The only basis for holding that injustice would be promoted by observing the rule of the separate entity of the corporation, is that defendant will be required to pay a license fee on commissions received from the printing company. We cannot say that such results in an injustice. Mr. Schifman caused the incorporation in order to secure benefits for himself. He must, as a consequence, bear the disadvantages.

Defendant says that there has been no change whatever in the nature and scope of services rendered by Schifman to the printing company as a result of the incorporation, and that it would, therefore, be discriminatory and contrary to law to deny defendant the exemption that was granted to Mr. Schifman as a salesman-employee of the printing company. It is true that both Schifman and defendant were compensated strictly on a gross commission basis. However, the printing company withheld nothing for Schifman’s taxes or expenses, which he himself paid. Defendant withholds expenses and taxes and pays the balance to Schifman, and it files it’s own tax return. Plaintiff says that such evidence indicates that the printing company has not, in fact, treated either Schifman or defendant as its employee. There is no evidence to the effect that defendant was in the full time regular employment of the printing company, no control of Schifman, by the printing company, verbal or written, was shown to have existed. Mr. Burke stated that both defendant and Schifman were under such control. Such statements are conclusions and are unsupported by substantial evidence. However that may be, the printing company had the right to control the activities of Schifman, if he was its employee, as claimed; but it has no right in law to control the detailed activities of defendant corporation.

It is claimed that denial of defendant’s exempt status is discriminatory because based on a “special law”. A study of the ordinances demonstrates that the exemption claimed by defendant is extended only to regular employee-salesmen of established businesses and that such business establishments are required to pay license fees based on their gross sales. Naturally, the merchandise, sold costs the business, whether produced by it or purchased for resale. The agent or agency selling for that same business would not bear that expense but would receive commissions on all of his or it’s gross sales, upon which license fees are based. This is a reasonable classification under the licensing laws. In 33 Am.Jur., Licenses, Sec. 31, it is said:

“NECESSITY of REASONABLE and SUBSTANTIAL CLASSIFICATION. * * *
“As a general rule, a classification for the purpose of license requirements and impositions will be upheld if there are substantial differences between the occupations or businesses separately classified or a manifest necessity for the classification. If the classification is a natural one, or a reasonable ground for the distinction exists, the law or ordinance will be upheld, even though the difference between the subjects classified is not great. On the other hand, there are certain limitations upon this power to classify. A classification for the purpose of license requirements or impositions must be reasonable and may not be arbitrary or capricious. More particularly, a classification or subclassification of occupations, businesses, or privileges for the purpose of license laws must be based upon some reasonable ground of differences therein, which differences are pertinent to the subject of the license. License enactments based upon arbitrary classifications are merely invalid class or special legislation. * * * (Emphasis ours).

It is the law that if a license ordinance is so unreasonable and unfair in the classification adopted as to be an arbitrary classification for tax purposes, it will be declared void. But the ordinance here considered is not defective in that regard.

The judgment is reversed and the cause is remanded.

MAUGHMER, C., concurs.

PER CURIAM:

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

HOWARD, P. J., CROSS, J., and FRANK D. CONNETT, Jr., Special Judge, concur.


author: WOLFE, Judge.

text:
    CARSON UNION MAY STERN COMPANY, a Corporation, Plaintiff-Respondent, v. The PENNSYLVANIA RAILROAD COMPANY, a Corporation, Defendant-Appellant.
    No. 32514.
    St. Louis Court of Appeals. Missouri.
    Oct. 17, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 28, 1967.

      Alan E. Popkin, Coburn, Croft & Kohn, St. Louis, for appellant.
    Max Sigoloff, St. Louis, for respondent.
   WOLFE, Judge.

This action originated in Magistrate Court in the City of St. Louis. The Petition was in two counts. The first count sought to recover for the value of goods converted by the defendant to its own use. The second count sought recovery from the defendant for damage to the same goods in shipment. There was a judgment for the defendant in the Magistrate Court on both counts and the plaintiff appealed. The trial, upon appeal, was to the court and the Circuit Judge entered a judgment for the defendant on both counts of the Petition. In due time the plaintiff filed a motion to set aside the judgment in favor of the defendant and enter a judgment for the plaintiff. The court sustained the motion as to Count I of the Petition and overruled it as to Count II. A judgment was then entered for the plaintiff on the theory of conversion on Count I and the defendant prosecutes this appeal.

The freight shipment to the plaintiff consisted of 225 steel cabinets. About two days after receiving delivery of cabinets the plaintiff’s manager, a Mr. Fihn, directed that some of the cabinets be removed from the corrugated packing cases in which they were shipped. When this was done it was found that some of the cabinets were damaged. Fihn testified that there were places on some of the cartons that were pressed in or slightly crushed. Twenty-three of the cabinets were found to be damaged in that some steel channels, spot welded to the inside of the cabinets as drawer slides, had broken loose.

Fihn testified that after a conversation with the claim agent, “that they were allowing the claim,” he told them to pick up the damaged cabinets and on January 6, 1964 a claim was filed with the defendant for $595.47. On January 7, 1964 the plaintiff sent to the defendant the following letter:

“Pennsylvania Railroad
Freight Claim Department
East St. Louis, Illinois
Gentlemen:
In re car #30720, shipper Parker Allen, you have made inspection of 23 # 130 cabinet bases at our warehouse, 904 So. 14th Street.
You were to arrange to pick up these damaged cabinets out of the full car shipment, and we were to file claim. Please arrange to have these picked up immediately.
Yours truly,
CARSON UNION MAY STERN”

After receipt of the letter the defendant had the twenty-three damaged cabinets picked up on Jan. 28 by a salvage company and Mr. Fihn wrote to defendant the following letter:

“Pennsylvania RR
Room 200-15 — North 32nd Street
Philadelphia, 4, Pennsylvania
Attention: W. D. Hamilton, Manager Freight Claims Dept.
In re: Claim 413-00031
Dear Mr. Hamilton:

• In re claim 413-00031, your Mr. Ross phoned today and stated that you desired to deny our claim.

Our warehouse informs me that this is incorrect, that they had spoken to Mr. Ross prior to this time, showing them part of the claim, and at that time, your Mr. Ross told them to open up every one of the units and considerable time elapsed before they had them all opened, and then they called him to come back and claim was filed.

Your Mr. Ross, representing your company, acknowledged the claim and waived all rights when he arranged to have the merchandise picked up, and the merchandise is in the hands of the Salvage Company. Consequently, we must ask that you do honor and take care of this claim of Five Hundred, Ninety-Five and 47/100 ($595.47) immediately, because we have paid the factory for this goods.

May we hear from you immediately, advising that payment will be forthcoming?

Respectfully yours,
CARSON MAY STERN CO.
A. I. FIHN”

On February 20 the defendant railroad sent the following in reply:

“Carson May Stern

11th & Olive
St. Louis, Mo.
Your file: Jan. 6, 1964
Gentlemen:

A thorough investigation of the transportation records reveals no evidence of improper handling of this shipment on the part of the carriers. The shipment was delivered to the consignee in good condition and request for inspection of the property was not received within fifteen days after date of delivery.

Under the circumstances, carrier liability does not exist and your claim is respectfully disallowed.

However, the property was sold by the carrier for account of the owner for $93.-50. We are sending you our payment voucher for that amount, which may be accepted by you without prejudice to your right to further payment in the event carrier liability is found.

Yours very truly,
s/ W. D. Hamilton
W. D. Hamilton
Manager, Freight Claims”

Mr. Fihn testified that the plaintiff at no time authorized the sale of the cabinets. He said that the cabinets could have been repaired for a small sum and that they were worth $20.00 each at the time defendant picked them up.

The claim agent testifying on behalf of the defendant stated that the cabinets were not damaged by the railroad. He stated that he had the cabinets picked up because “The company requested me to pick them up, it’s the relationship between the company, the consignee and the railroad, and we have to make every effort to do these things, and we were told to pick them up and I had no other choice.”

The foregoing constitutes the pertinent evidence presented and as stated the court entered a judgment for the defendant on both counts and later set aside judgment for the defendant on the conversion count and entered the judgment for the plaintiff.

The respondent here moved to dismiss the appeal and questions the sufficiency of the notice of appeal. The notice states that the defendant appeals from “setting aside judgment on Count I” rather than the judgment entered against the defendant. Under Civil Rule 82.04, V.A.M.R. the appeal should have been from the judgment entered. It is obvious that the appellant intended and in good faith attempted to appeal from the judgment and we shall consider the appeal as being from the judgment against defendant-appellant. State ex rel. State Highway Commission v. Kendrick, Mo., 383 S.W.2d 740.

The respondent also contends in the motion to dismiss the appeal that the appellant’s brief fails to comply with Civil Rule 83.05(a), (c), (e). We find this' contention without merit and the motion to dismiss the appeal is overruled.

The main contention raised by this appeal is that the evidence does not support judgment on the theory of conversion. In passing upon this we review the case upon both the law and the evidence as in suits of an equitable nature. Civil Rule 73.01(d), V.A.M.R; Adams v. Manchester Insurance & Indemnity Company, Mo.App., 385 S.W.2d 359.

There was no credible evidence that the cabinets were damaged in transit. The defects noted appeared to have been in the welding of the drawer channels. However, we are not concerned with the claim for damage in shipment for the defendant prevailed on that count, and the judgment is final. The determinative question to be decided is whether the sale of the cabinets by the defendant railroad constituted conversion.

“Conversion is an unauthorized assumption and exercise of the right of ownership over the personal property of another to the exclusion of the owners’ right. * * * ” State ex rel. and to Use of Williams v. Feld Chevrolet, Inc., Mo.App., 403 S.W.2d 672, 1. c. 680; Kegan v. Park Bank of St. Joseph, 320 Mo. 623, 8 S.W.2d 858, 1. c. 871. An examination of the evidence shows an authorized possession in the railroad defendant for it was requested to pick up the cabinets. The question left is whether or not it exercised an unauthorized ownership after it acquired the authorized possession, to the exclusion of the owner’s right.

The cabinets were not turned over for sale to the salvage company for the benefit of the railroad but for the benefit of the plaintiff owner. What possible purpose could the plaintiff’s manager have had in mind when he requested the railroad to pick up the cabinets? They were to be sold and he must have known and intended that when the salvage company picked them up.

In 13 Am.Jur.2d, Carriers § 434, it is said: “ * * * A carrier may, however,, sell for the account of the owner where such owner, after being notified of the conditions, gives notice to the carrier of his abandonment of the property and of his intention to claim its value. * * * ” The facts before us fit within this rule for the action of the plaintiff clearly indicated that he was in effect abandoning the property and asserting a claim for its value. The railroad sold it and gave the plaintiff the money it received from the sale.

We hold that the plaitiff failed to make a case of conversion and the judgment on Count I of the Petition is reversed.

ANDERSON, Pi J., and RUDDY, J., concur.


author: CLEMENS, Commissioner. PER CURIAM.

text:
    William E. LANE, Jr., and Katherine M. Lane, Plaintiffs-Respondents, v. Elmer KATT and Helen Greibing, Executor and Executrix of the Estate of Martin Katt, Deceased, Emilie Katt, Elmer Katt, and Marie Katt, Defendants-Appellants.
    No. 32734.
    St. Louis Court of Appeals. Missouri.
    Oct. 17, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 28, 1967.
    Application to Transfer Denied Jan. 8, 1968.
    Francis Toohey, Jr., Leo J. Rozier, Perry-ville, for appellants.
    Buerkle & Lowes, by Albert C. Lowes, Jackson, for respondents.
   CLEMENS, Commissioner.

This suit for injunction and damages arose from a dispute between neighbors over the location of an old boundary-line fence. Plaintiffs got a judgment and the defendants appeal.

The disputed area is a strip 8 feet by 600 feet, flanked by the fence. In the spring of 1963 the defendants cut down a tree in the fence line, tore up part of the fence, and declared their right to move the rest of it. Thereupon, the plaintiffs sued for the injunction and damages.

Admittedly, the fence stood on defendants’ land, but plaintiffs relied on a written agreement executed in 1924 by the parties’ predecessors in title. By that document defendants’ predecessors had agreed not to move the fence without the consent of plaintiffs’ predecessors. Although plaintiffs’ predecessors had sold their land, they had not consented to moving the fence. On submission of the case the court enjoined defendants Martin Katt, Elmer Katt and Marie Katt from disturbing the fence. Further, the court gave plaintiffs $25 actual and $25 punitive damages against those three defendants. They appeal. (On September 18, 1967, we ordered that “Elmer Katt and Helen Greibing, Executor and Executrix of the Estate of Martin Katt, deceased, be and they are hereby substituted as appellants in place of the said Martin Katt * * *.”)

We are faced first with plaintiffs’ motion to dismiss defendants’ appeal. Plaintiffs contend that the defendants’ brief fails to comply with Civil Rule 83.05(a) (3) and (e), V.A.M.R., which requires an appellant’s “points relied on” to be specific. We have concluded that defendants’ points relied on are so general that they preserve nothing for review. Their points:

“I. The court erred in overruling Appellants’ motion to dismiss for the reason that all the parties in interest were not made parties to this action for a declaratory judgment.
“II. The trial court erred in admitting into evidence aerial photographs which had not been properly identified.
“HI. The judgment of the court on Count I of Respondents’ petition was contrary to the weight of the evidence.
“IV. The judgment of the court on Count II of Respondents’ petition was contrary to the weight of the evidence.”

In Pauling v. Rountree, Mo.App., 412 S.W.2d 545[1], we stressed an appellant’s obligation under Civil Rule 83.05(a) and (e), V.A.M.R., saying: “Subsection (a) requires an appellant’s brief to contain the ‘points relied on,’ which shall state what actions or rulings of the trial court are sought to be reviewed and wherein and why they are claimed to be erroneous. Subsection (e) emphasizes this, declaring that the points relied on shall concisely state why the trial court was wrong in any ruling or action sought to be reviewed. In effect, the rule says the points relied on should be used as a target pistol firing at a bull’s-eye, not as a shotgun firing at clay pigeons.”

Considered together, the defendants’ four points relied on here run afoul of the rule that abstract statements of law or fact will not be considered. This, because they “do not state the actions or rulings of the court claimed to be erroneous and why the court was wrong.” Turner v. Calvert, Mo., 315 S.W.2d 118[2], and Repple v. East Texas Motor Frieght Lines, Mo., 289 S.W.2d 109[3]. And, considered singly, each of defendants’ points is similar to points in other briefs that have been condemned as defective under our civil rules.

Defendants’ first point concerns omitted parties in interest. The point tells neither opposing counsel nor this court who those parties are, what their interest is, or why they are necessary. The point fails to say why the trial court erred. A similar point was condemned in the case of In re Alexander’s Estate, Mo., 360 S.W.2d 92[4].

Defendants’ next point that the court erred in admitting aerial photographs is an abstract assertion. In Wachter v. Grogan, Mo.App., 410 S.W.2d 550[10], we condemned a point like that because it did not say why the ruling was erroneous. See, also, McGrail v. Schmitt, Mo., 357 S.W.2d 111[11].

Defendants’ last two points say the judgment was contrary to the weight of the evidence. For many years such assignments have been held too general to preserve anything for review. Matthews v. Karnes, 320 Mo. 962, 9 S.W.2d 628[5], and Gilbert v. Malan, 231 Mo.App. 469, 100 S.W.2d 606[1].

In declining to accept abstract assertions as proper points relied on, we said in Pauling v. Rountree, supra, 412 S.W.2d 1. c. 549 [11]: “In doing this we follow the time-honored principle that the purpose of rules of appellate procedure is to enable counsel and the court to get down to the hard-core issues of the case. This can be done only when the appellant’s brief precisely informs the respondent and the appellate court just what those issues are. The rules must be enforced or abandoned, for when an appellate court does not enforce its rules it unjustly penalizes those who labor to obey them. See Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668[2]. That case was followed in the landmark case of Ambrose v. M. F. A. Co-Operative Assn. of St. Elizabeth, Mo. (banc), 266 S.W.2d 647, where appellants were again warned of the results of violating rules of appellate procedure. Since 1954, appellate courts have cited the Ambrose case an average of six times a year. We cannot, in good conscience, ignore the failures of defendant’s brief to comply with our rules.” That statement is appropriate here.

Civil Rule 83.09, V.A.M.R., requires us to dismiss defendants’ appeal for failure to comply with Civil Rule 83.05, V.A.M.R., unless there is a showing that justice requires otherwise. No such showing appears. Weinbrenner v. McCall, Mo.App., 336 S.W.2d 532. We grant plaintiffs’ motion to dismiss the appeal.

PER CURIAM:

The foregoing opinion of CLEMENS, G, is adopted as the opinion of this court. Accordingly, the appeal is dismissed.

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

Motion for Rehearing or to Transfer

PER CURIAM.

In their motion for rehearing or to transfer, the appellants urge the proposition that since this was a court-tried case they are entitled, under Civil Rule 73.01(d), V. A.M.R., to a review of the entire case upon both the law and the evidence. True, but that does not excuse them from compliance with Civil Rule 83.05, V.A.M.R., requiring that the points relied on in their brief contain specific statements of error. The appellants’ Points Relied On here merely state that the judgment “was contrary to the weight of the evidence”, that tells neither court nor counsel wherein or why the trial court erred. In Schlanger v. Simon, Mo., 339 S.W.2d 825[1, 3], the Supreme Court acknowledged the right to an appellate review of the entire case in an equity suit, but added: “But the appellate court performs the above functions only in respect to the specific matters urged by appellant as constituting error. It does not review the whole case on its own initiative to determine what result it would have reached if it were sitting as the trial judge. * * * An appellate court should not become an advocate of one of the parties, and therefore it is not the duty of an appellate court to search the evidence is an effort to find some theory, and facts in support thereof, to establish a general assertion that the trial court reached the wrong result.” See, also, Yates v. White River Valley Electric CoOperative, Mo.App., 414 S.W.2d 808 [4]. Appellants’ motion for a rehearing or, in the alternative, to transfer to the Supreme Court is denied.

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


author: SPERRY, Commissioner. PER CURIAM:

text:
    Jasper B. LIEBSTADTER et al., Plaintiffs-Appellants, v. Clyde F. BROOKS, Defendant-Respondent. Jasper B. LIEBSTADTER et al., Plaintiffs-Respondents, v. Clyde F. BROOKS, Defendant-Appellant.
    Nos. 24567, 24568.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 4, 1967.
    Application to Transfer Denied Jan. 8, 1968.
    Michael E. Waldeck, Gordon, Adams, Niewald & RIsjord, Kansas City, for appellants.
    Don B. Roberson, Shughart, Thomson & Kilroy, Kansas City, for respondents.
   SPERRY, Commissioner.

Plaintiffs sued defendant for damages growing out of a fire loss to their building which was leased to defendant. The cause of action stated was on the res ipsa loquitur theory. They prayed for damages in the sum of $8,474.00. Trial to a jury resulted, in a verdict and judgment for plaintiffs in the sum of $1,000.00. Plaintiffs filed motion for new trial based on the amount of damages only; defendants filed motion for judgment in accordance with his motion for directed verdict and, in the alternative,, a motion for order to set aside the verdict and to dismiss the petition. The after trial motions were overruled and plaintiffs and defendant have appealed. The appeals were consolidated by order of this court.

We will first consider the appeal of defendant Brooks. He states that:

“the court erred in overruling defendant’s motion for judgment in accordance with defendant’s motion for a direct verdict, and in the alternative, motion of defendant for order to set aside verdict for plaintiffs and to dismiss plaintiff’s petition, because of the failure of the plaintiffs to sue in the name of the real parties in interest, when the unassailable proof disclosed plaintiffs had assigned their entire interest, both equitable and legal, to their alleged cause of action to insurers before the filing of the suit in issue”.

In their answer to defendants’ interrogatories plaintiffs stated that they had been paid $5,272.71 by the Northwest Insurance Co., and the sum of $3,201.29 by the Western Fire Insurance Co. It is admitted that the total of these payments equal the amount sued for in this case, and that plaintiffs had thereby been fully compensated for their loss. In answer to defendant’s “request for admissions” plaintiffs admitted “that subrogation receipts were executed to various insurance companies, assigning all rights, claims and interests to the extent of payment and subrogating said insurance companies, and authorizing said insurance companies to sue in the name of the named insured”.

Defendant thereupon filed motion for an order substituting the above named insurance companies, in place of plaintiffs, as the real parties in interest. The motion was denied and defendant appeals and rests his claim of error upon that record.

In Swift and Company v. Wabash Railroad Co., 149 Mo.App. 526, 131 S.W. 124 (1910), this court considered a situation similar to this. There Swift and Co. owned property which was destroyed by a fire caused by sparks emitted from locomotives operated by defendant. Plaintiff sued to recover from defendant the full value of the property destroyed, to-wit, $2600.00. Defendant pleaded a general denial, and also pleaded facts which, it contended, showed that plaintiff was not the real party in interest. Trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $2,566.91.

On appeal defendant there contended that the court should have directed a verdict for defendant, first, because the evidence failed to show that the fire was caused by sparks emitted from defendant’s locomotives, and second, that defendant had neither the legal title nor any beneficial interest in the cause of action, if one existed. The latter contention was based on the following undisputed facts: that plaintiff was the owner of the property, which was of the value of $2,566.91; that it carried insurance for its full value, with three separate insurance companies; that each company settled with plaintiff after the fire and before the institution of the suit; that, thereupon, and prior to the institution of the suit, plaintiffs executed and delivered its several assignments in writing, whereby it assigned and transferred to each of said insurance companies, its claim and cause of action, to the amount and the extent of the respective payments made by them in settlement of plaintiffs’ claim for the destruction of its property.

The court rejected defendant’s theory in that case and affirmed the judgment. In the concluding paragraph of Swift (1. c. 126) the court said:

“ ⅛ * *
“The assignments before us — the written as well as the equitable — whether considered singly or conjointly, had no other effect than to convey to each assurer an equitable interest in plaintiff’s cause of action against defendant. The legal title still remained in plaintiff corporation in the name of which the action could be prosecuted. The proceeds of the judgment will come to the hands of plaintiff impressed with a trust in favor of the insurance companies which, in the aggregate, are the owners of the entire beneficial interest”.

At 1. c. 125 the court stated that it would be disinclined to follow the rule declared therein if the full loss had been reimbursed by a single insurer. This case does not involve an assignment and transfer of a cause of action to a single assignee. Therefore, we do not rule that point. It was not before the court in the Swift case, nor is it presented here.

In the comparatively recent case of Meyer Jewelry Co. v. Professional Building Co., et al., Mo.App., 307 S.W.2d 517, 522, this court ruled the identical question here presented in accordance with, and based upon the ruling declared in Swift and Company v. Wabash, supra. The Swift case is cited in other recent cases that we have read, but it is not cited as to the particular point here discussed. We have not found a case where the rule above stated in the Swift case has been criticized. See Hayes v. Jenkins, Mo.App., 337 S.W.2d 259, 261, and the cases cited there. In the Hayes case, supra, the court cited Steele v. Goosen, Mo., 329 S.W.2d 703, as authority for the proposition that one who assigns his entire claim, both legal and equitable, cannot maintain an action on it. Defendant here relies on the Goosen case as authority for his position. In the Goosen case plaintiff’s assignment was to one insurer only. It is inapplicable here. We rule against defendant on his appeal and affirm the judgment as to that phase of this case. We rest our ruling squarely on the Swift case and on the Meyers Jewelry Co. case, supra.

Plaintiffs prayed for damages in the sum of $8,474.00. The insurers paid that amount in settlement of the claim. The jury found a verdict in the sum of $1,000.00. Plaintiffs filed motion for new trial as to damages only, on the grounds that the size and amount of the verdict is so inadequate as to indicate bias and prejudice against them, that it is against the weight of the credible evidence, and that it is contrary to all of the evidence presented on the issue of damages, including defendant’s own testimony. The court overruled this motion. Plaintiffs rest their appeal on that action.

Instruction 6 deals with the issue of damages and provides, in part, as follows: “the term damages as used in this instruction, is the difference in the reasonable market value of the property referred to in the evidence immediately before and immediately after the occurrence mentioned in the evidence”. The instruction is not criticized by either party and it meets with our approval in this case.

The evidence relative to the measure of damages consists of the testimony of three witnesses, although there was testimony of other witnesses relative to the general nature and extent of damages, but these latter witnesses did not attempt to estimate the cost of repairs or the reasonable market value of the building before and after the fire occurred.

Mr. Dean stated that he had been in the general building and contracting business, as an independent contractor and as a builder, for many years; that he had had experience in the building industry for a period of fifteen years. He stated that, at the request of plaintiffs, for whom he had previously done construction work, he made a thorough inspection of the building a short time after the loss occurred. He described in evidence the nature and extent of repairs which, he stated, were required to be made in order to restore the building to its former state. He stated that he had familiarized himself with the reasonable cost of labor and materials for electrical, plumbing, roofing, painting, plastering, and carpentering, necessary to make the repairs. His estimate of the total reasonable cost of repairing the building was $10,340.00. He stated that he delivered a copy of his written estimate to plaintiffs. He testified from the written estimate and was cross examined thereon.

Plaintiff, Liebstadter, who owned a major interest in the building, stated that his occupation had been, for many years, that of an insurance and real estate broker; that he was familiar with real estate values in Kansas City, including commercial buildings; that, prior to the fire damage, this building was in good condition; that the first floor was adapted to use as a garage; that the second floor consisted of eight rooms and two baths, which had been used as living quarters; that the reasonable market value of the building, immediately prior to the fire loss, was $15,000.00; that its reasonable market value immediately thereafter, was $6,600.00.

The third and last witness as to the issue of damages was defendant Brooks. He stated that, in addition to carrying on his tow truck business, he had been engaged in the general fire insurance business, representing several companies as agent; that he was experienced in buying and selling real estate; that he had assisted insurance adjusters in estimating the extent of damages to buildings caused by fire losses; that he had had experience in this field since 1931; that he inspected this building immediately after the fire had occurred; that he estimated the damage to the building, caused by the fire, to be $2,500.00.

The only testimony received concerning the difference in the reasonable value of the building before and after the fire, was that it was $8,400.00. The only testimony regarding the cost of repairing the damages caused by the fire was that of Mr. Dean, $10,400.00, and that of defendant, $2,500.00.

There was no evidence whatever from which the jury could have found a verdict of $1,000.00. The lowest estimate of the cost of repairs, (by defendant himself) was $2,500.00. In cases of this kind, evidence of damages usually, (if not always) rests on the opinion of informed, knowledgeable witnesses. The jury evaluates the testimony and determines the amount of its verdict based thereon.

In St. Paul Machinery Mfg. Co. v. Henry Gaus & Sons Mfg. Co., 198 Mo.App. 416, 200 S.W. 89, the court considered a case where plaintiff had leased certain machinery to defendant for a term which had expired. The machinery was destroyed by fire while it was in the custody of defendant. On the question of damages, (the market value of the machinery at the time it was destroyed), one witness for plaintiff stated the market value of the machinery prior to the fire, was $2,000.00. One witness for defendant stated the value to have been $2,500.00. This was all of the evidence on that point.

The jury found a verdict in the sum of $500.00 and judgment was entered in that amount. Plaintiff appealed and the court said, 1. c. 90:

« ⅜ * *

“[1] It is impossible to sustain this verdict for the amount awarded. This is not a question on passing on the weight of evidence but as the case appears from the abstract, which is unchallenged, it is one of absence of any evidence to support the verdict. We do not say that the jury were bound to accept the valuation fixed by witnesses, but we do say that there is no evidence whatever in the case warranting the jury in returning a verdict for $500.00, with interest on that amount, * * *

In reversing the judgment and remanding the cause the court said, 1. c. 91:

“It is for the jury * * * to fix the amount of recovery in accordance with the evidence in the case”. (Emphasis ours).

In Busse v. White, 302 Mo. 672, 259 S.W. 458, 461, the court, in reversing and remanding a judgment because of the inadequacy of the verdict, stated the law to be that juries were to be guided by their common sense and by the instructions of the court in arriving at their verdicts; but that, in the case there considered, the jury had no legal right to disregard the instructions of the court and return a verdict for plaintiff for $1,000.00 when, on the facts of the record plaintiff was entitled to recover $55,880.00.

In the case at bar the lowest evidence as to the amount of damages, if any, that plaintiff was entitled to recover, was the sum of $2,500.00, the amount of damages admitted by defendant in his testimony. This judgment cannot stand.

The judgment is reversed and the cause is remanded for a new trial on the issue of damages only.

MAUGHMER, C., concurs.

PER CURIAM:

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

All concur.