author: SAMUEL A. DEW, Special Commissioner.

text:
    John GAZZOLI, (Plaintiff) Appellant, v. STAR NOVELTY COMPANY, a Corporation, and The Fidelity and Casualty Company of New York, a Corporation, (Defendants) Respondents.
    No. 30970.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 19, 1962.
    Max M. Librach, Sidney Rubin, St. Louis, for appellant.
    Luke, Cunliff & Wilson, Wm. J. Mc-Cluggage, St. Louis, for respondents.
   SAMUEL A. DEW, Special Commissioner.

The appellant made claim for benefits under the Missouri Workmen’s Compensation Law for bodily injuries sustained March 21, 1958. The Referee found in his favor and awarded him $9,513.38. Upon a review of that award the Industrial Commission of Missouri ruled that the appellant was not an employee of the Star Novelty Company and reversed the award rendered by the Referee in its entirety. From that ruling of the Commission an appeal was taken to the Circuit Court of the City of St. Louis. That court affirmed the ruling of the Commission, denying the claim. An appeal was then taken to this Court from such judgment of the Circuit Court.

The sole question presented here is whether, as a matter of law, the appellant was an employee of the Star Novelty Company, a corporation, at the time his injuries were sustained, within the meaning of the Missouri Workmen’s Compensation Act.

All of the facts were stipulated in writing before the Industrial Commission, which we set forth below, with deletion of such parts as are deemed not pertinent or essential.

“The Star Novelty Company is a corporation having been organized as such April 10, 1950, and qualifying as a Missouri corporation since that time. * * * The four original organizers and stockholders constituted the first Board of Directors. This corporate setup continued until April 10, 1954, when all the shares of stock held by Albert Librach and Hattye Librach were bought up. John Gazzoli and his wife were then and continued to be sole owners of the outstanding shares of stock, John Gazzoli holding 374 of the 375 outstanding and Dorothy Gazzoli, the one remaining. The Board of Directors consisted of John Gazzoli, Dorothy Gazzoli and Allen Blomen-kamp (who owned no stock). Dorothy Gazzoli was listed as President on the corporate books. Allen Blomenkamp as Secretary and John Gazzoli as Vice-President and Treasurer. This formal corporate setup has continued without change until the present time.
“John Gazzoli at all times exercised full and absolute control over every facet and phase of the operation of the business since the purchase of the Librach interests. He was responsible to no one but himself. Board of Directors’ meetings were held yearly to comply with corporate requirements but the meetings were purely a formality and the directors automatically ratified and approved any actions taken or contemplated by Gazzoli. He received! and sought no authority from the directors. He determined who was to serve as directors. The directors had. no control or direction over Gazzoli-They could not discharge Gazzoli. All authority over and direction of all the operations of the business was retained and exercised by Gazzoli.
“All hiring and firing in the operation of the business was done by Gazzoli, either personally or at his-personal direction and with his approval. All employees were directly responsible to John Gazzoli. He assigned all work to be done by those so-employed.
“John Gazzoli determined and set all salaries paid, including his own. He could and did take money from the business collections on his own authority. Records were, of course, kept of such withdrawals. He drew money for expenses, in whatever amounts he chose, whenever he chose, for which he was accountable to no one but himself. He could and did make loans to individuals and firms out of company money, solely on his own authority and without consultation with others connected with the company. All equipment and merchandise used by the business was purchased by Gazzoli and any financial arrangements for such purchases, if any were required, were negotiated and arranged by Gazzoli. He had and exercised absolute discretion in the use and disposition of all company assets as any other individual would with his own funds.
“John Gazzoli drew a net of $600.00 per week from Star Novelty, several times that paid anyone else carried on the payroll. Social Security and Federal Income Tax were set aside by the company, the amounts being computed to allow Gazzoli the $600.00 net. He ■was provided with a form ‘W-2’ listing the amounts so paid and withheld for Federal Income Tax purposes. These forms indicate Gazzoli received a gross income in excess of $40,000.00 per year from Star Novelty. Since its inception, for Federal income tax purposes, the Star Novelty Company has listéd Gazzoli as an employee in its regular quarterly returns in reporting and paying withholding and Social Security taxes.
“The corporation paid Federal and State income tax every year on its profits which approximated $35,000, $70,000 and $50,000 for the fiscal years 1956, 1957 and 1958, respectively.
“The Star Novelty Company has never officially paid a dividend on its outstanding stock. The corporation, since the Librach interests were purchased, has had substantial surpluses, as above indicated, out of which dividends could have been paid. These surpluses were permitted to accumulate by the Board of Directors over whom Gazzoli had complete control. The sums so accumulated were deposited and used as directed by Gazzoli. * * * The corporate structure was maintained without change and Gazzoli still retains and owns all of the outstanding shares of stock except the one' (out of 375) listed in his wife’s name.
“Upon formation of the corporation, a ‘Standard Workmem’s Compensation, and Employers’ Liability Policy’ of insurance was purchased from The Fidelity & Casualty Company of New York. This policy, following the standard form, provided coverage for the Star Novelty Company’s liability under the Workmen’s Compensation Law of Missouri and provided the usual additional coverages for other liability and for inspection. As is customary, the premium charged for the policy was based on the Star Novelty Company’s payroll. From time-to time, the insurance company’s auditors computed the premium due based on the payroll records submitted by the Star Novelty Company. The money drawn by Gazzoli was included in the payroll audit although rated, as is customary, as $100.00 per week, i. e., premium was collected on the money drawn by Gazzoli only on the basis of $5,200.00 per year, not on the full amount.
“The Star Novelty Company was engaged in the general vending machine business, being known in the trade as ‘operators’ of phonograph machines and pinball machines. * * * Each week a collector, or route man, for the Star Novelty Company checked the various machines on location, * * *. At the end of the day, the route man returned to the office with his collection of assorted change. The money was locked in the safe overnight. On the following morning, the money was sorted, counted, tabulated, accounted for, entered into the books of record and then put into wrappings preparatory to being taken to the bank for deposit by an armored messenger service which came daily between eleven and twelve o’clock noon in order to get the money to the bank before the close of business.
“Gazzoli customarily, in addition to general supervision, personally participated in these regular morning activities. He helped the girls count, wrap and sort the change, or answered the telephones for the girls if they were occupied in the counting, etc., of the change. The entire operation usually required about two or three hours to complete with Gazzoli’s help. Without Gazzoli’s active participation, either in the physical handling of the money or in answering the telephones, this operation would have taken longer unless additional help were hired.
“Gazzoli customarily worked from about 7:45 A.M. until 10:00 P.M. daily, except Sunday, in the business. * * * This entailed a great deal of what could be termed public (customer) relations such as calling on the customers, entertaining them, loaning them money in some instances and generally satisfying, if possible, their many and varied complaints. Gazzoli also acted as general ‘trouble shooter,’ answering calls for emergency service if his regular servicemen were unavailable, assisting in repairs of equipment and generally ‘filling in’ when the route men or other workers were unavailable for any reason.
“On March 21, 1958, at about 9:00 A.M., John Gazzoli was in the office of the Star Novelty Company, helping with the handling of the previous night’s collections as he customarily did. In this particular instance, he was seated at the telephone desk in the middle section or office. The girls who regularly answered the telephones, were engaged in the counting operation and Gazzoli was filling in, answering telephones for them.
“Three armed and masked men came through the front door and entered the middle office. Gazzoli, realizing he was about to be held up, seized a pistol from a drawer nearby. The men opened fire and Gazzoli returned it. One of the men was hit by one of Gazzoli’s shots and was captured by Harry Dorn, the office manager, who had come up from the repair shop on hearing the shooting. The other two men fled and made good their escape. The attempted robbery was unsuccessful. * * *
“In the affray, Gazzoli was seriously wounded receiving six bullet wounds about his arms and body and was bleeding profusely. * * *
“He was confined in the hospital for a period of 4½ weeks and remained at home following his release for an additional period of ten weeks. It was almost six. months before he returned to active participation in the business of the Star Novelty Company. Gazzoli has received and paid the following bills for medical, nursing and hospital services incurred within 90 days following the injury:
Hospital and Nursing $1,978.32
Joseph J. Gitt, M. D. 75.00
Raymond Chamas, M. D. 200.00
Medicines 9.96
Drs. Signorelli and Cassell 2,500.00
$4,763.28
“As a result of the injuries sustained in this described affray, Gazzoli has sustained permanent partial disability amounting to thirty (30.%) percent of the man as a whole.”

The facts having been agreed upon, it is the function, duty and power of this court upon appeal to review the judgment of the Circuit Court solely as a matter of law, and in so doing we are not bound by the legal conclusions of the Industrial Commission. Corp v. Joplin Cement Co. et al., Mo. en banc, 337 S.W.2d 252, 257; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918. In such a review it is required of this court to determine if the award of the Commission “is supported by competent and substantial evidence on the whole record,” and if the “Commission could have reasonably made its findings and reached its results on a consideration of all the evidence before it.” Corp v. Joplin Cement Co., supra, (337 S.W.2d 1. c. 258); Brown v. Anthony Mfg. Co. et al., Mo., 311 S.W.2d 23, 27; Mo.Const., Art. V, § 22, V.A.M.S.

The appellant maintains that the agreed statement of facts proves him to have been, as a matter of law, a qualified employee under the Missouri'Workmen’s Compensation Law and entitled to an award for his compensation. The respondents vigorously insist that the admitted facts prove that, as a matter of law, the appellant was not an employee of Star Novelty Company within the meaning of the Missouri Workmen’s Compensation Law, is not entitled to an award as such, and that the judgment of the Circuit Court affirming the ruling of the Commission to that effect should be affirmed.

The appellant first emphasizes the admonition of the Workmen’s Compensation Act of Missouri that its provisions “shall be liberally construed with a view to the public welfare * * Section 287.800, R.S.Mo., 1959, V.A.M.S.; and the interpretation of the mandatory requirement by the Supreme Court, which quoted with approval the following: “This requires us to adopt such a construction as will extend its provisions to the largest possible class of employees, and to restrict those excluded from its provisions to the smallest possible class.” Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1011, 1014.

Our attention is next called by appellant to the definitions in the Missouri Workmen’s Compensation Act of the terms “employee” and “employer.” Section 287.020(1) provides : “ * * * ‘Employee.’ * * * Every person in the service of an employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election.” Section 287.030(1) provides: “* * * ‘Employer’ * * * Every person, partnership, association, corporation, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay.”

For his further interpretation of the law the appellant relies chiefly upon the dual capacity doctrine. Thát theory is explained in 99 CJ.S. Workmen’s Compensation § 82 (b), p. 302, which we quote at length:

"Although the doctrine has been rejected, the majority of the cases adhere to what may be called the dual capacity doctrine; that is, that an officer, director, or stockholder of a corporation will not be denied compensation merely because he is such officer, director, or stockholder if, as a matter of fact, at the time of the injury he is engaged in performing manual labor or the ordinary duties of a workman and receives pay therefor in the capacity of an employee, or if he is engaged in an employment palpably separate and distinct from the official duties falling on him as an officer of the corporation.
“Whether an officer, director, or stockholder is an employee within the act depends largely, in each individual case, on the particular facts and circumstances of the case. Consideration must be given to the actual business relations between the corporation and the officer, the privileges indulged in with respect to working hours, the compensation received, whether the officer is subject to any control by the corporation in his activities, and the legislative intent as expressed in statutory definitions. Consideration must also be given to the degree of control exercised over the business; and where one claiming compensation is practically the whole corporation, he cannot be an employee as manifestly he could not be both employer and employee; he could not employ himself.
“Holding stock in a corporation is not necessarily inconsistent with being an employee thereof, and this is so even though claimant owns all or a majority of the stock, although it has been held that those who own the majority of the stock, dictate the policy of the corporation, and manage its prudential affairs are considered in the same category as partners in the management of the business, and do not sustain the relation of employee to the company so as to come within the act.”

Pertinent to this issue, it is said in Larson’s Workmen’s Compensation Law, Vol. 1, Sec. 54.21, at page 788: “Moreover, the work, to qualify as employment, should be done under the control of someone,” and in Section 54.22, at page 789: “Stock ownership as such does not, of course, defeat employee status. But when stock ownership becomes so preponderant that the stockholder is for practical purposes the alter ego of the corporation, the compensation acts, which are inclined to be realistic rather than technical, will disregard the corporate entity and treat the stockholder as the employer.”

“Thus, the owner of practically all the issued stock of a corporation of which he is president and general manager, who is responsible to no one for his business acts, who is under no one’s direction, and who takes all the earnings of the corporation as salary, is not its employee within the meaning of a workmen’s compensation act, so as to render the corporation and its insurance carrier liable for injuries received in the course of the employment.” 58 Am. Jur. page 679, Section 150.

Respondents contend that the law fixing the status of appellant as a qualified employee or otherwise under the Workmen’s Compensation Law is fully determined by the Supreme Court of Missouri in the case of Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 142 S.W.2d 866, hereinafter analyzed. Appellant, anticipating the citation of that case, disputes its applicability to the case at bar. He claims it is to be distinguished on the ground that at the time that case arose the statute here involved excluded employees whose average annual earnings exceeded $3600, an exemption long since deleted by the Legislature from the present statute. Appellant asserts that the court in the Soars ■case in reality dealt with the pecuniary feature of the statute as it then existed, rather than the effect of the decedent’s relationship with the corporation, and that the court’s comments on the latter issue were obiter dicta.

A careful exposition of the Soars case, supra, becomes essential. In that case the widow and children of Charles Soars claimed and were awarded compensation for his death in 1933, under the Workmen’s Compensation Act. Upon review, the Circuit Court reversed the award and an appeal was then had to the Supreme Court. The sole issue on appeal was whether or not Soars was an employee of the corporation under Section 3305(a), R.S.Mo., 1929 (Sec. 287.020, 1959, as amended). That statute then defined an “employee” for the purposes of the Workmen’s Compensation Act as follows : “ ‘The word “employee” as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, but shall not include persons whose annual average earnings exceed three thousand six hundred dollars.’" (142 S.W.2d 1. c. 867.) Section 3304(a) R.S.Mo., 1929, defined “employer” to include a corporation using the services of another for pay. (Sec. 287.030, R.S.Mo., 1959, V.A.M.S., as amended.)

The Supreme Court pointed out in the Soars case that the evidence showed Soars had been credited for some earnings in excess of $3600; that he had not accepted all of it but had ordered some of it credited back to the corporation and charged to profit and loss; that at the time of his death he and his stenographer were the only ones in the business who were paid a salary; that he was the president and general manager of the corporation; majority owner of the stock; that he had no superior officer over him; that no one could discharge him, and that he was, in fact, the “boss” of the business.

The court held that the amount of Soars’ earnings exceeded the statutory limitation for qualified employees under the Workmen’s Compensation Act, even though he had not received some of it or ha'd some of it credited back to the corporation. The court said that the Legislature did not intend that a chief officer of a corporation and owner of three-fourths of its stock “could bring himself back under the act, at the end of any year, * * * by crediting back to the corporation by book entries part of his salary, previously fixed and credited to him after the amount of such salary properly fixed and credited to him had once put him outside of it, under the terms of the exclusion clause.” (142 S.W.2d 1. c. 869— Italics supplied.) The court further said that such amounts owed to the decedent and not collected were, nevertheless, earnings and the gift of the same to the corporation would not change his status under the exclusion clause.

“However,” said the court in the Soars case (142 S.W.2d at 1. c. 869) : “here Soars was 'the boss’ with no superior officer, whom no one could direct, control or discharge, and with power through his stock ownership to control the corporation and elect the majority of its directors. As a practical matter, he had the actual power to fix his own salary. While an executive officer may have a dual capacity so as to be also an employee under the act because of the character of his relation to the corporation and the kind of work he does, it has been frequently held that one who is both chief officer and majority owner in actual control of operations does not have the status of an employee under Workmen’s Compensation Acts (citations).” The court added that the Act was a “Workmen’s Compensation Act,” and not an “Employer’s Compensation Act.”

Concluding that feature of the case the court said in the Soars case, (142 S.W.2d at page 870) : “We, therefore, hold that the substantial owner of an incorporated business, who completely manages and directs its entire operations, cannot bring himself under the Workmen’s Compensation Act by giving back to the Corporation part of his salary after it has become legally obligated to pay him an amount exceeding that which, under the exclusion clause of the Act, would also prevent him from being within it.” (Italics supplied).

It is evident from an analysis of the Soars case that the court based its decision on the fact (1) that because of the decedent’s relationship with the corporation he did not sustain the status of an employee under the Workmen’s Compensation Act, and (2) that, even if that were not the law, he could not “bring” himself within the Act by ordering on his own sole authority, parts of his salary to be shown on the books of the corporation as credited to profit and loss, sufficient to escape the statutory limitation on earnings under the Act which “also” excluded him. Both of these issues were interrelated and evidence on each was pertinent to the other.

We do not agree that the opinion in the Soars case is inapplicable to the case at bar nor that the comments contained in it relative to the effect of decedent’s relationship with the corporation upon his status as an employee were obiter dicta. The case is, we think, determinative of the appellant’s claim for compensation herein and precludes his right of recovery. Riss & Co. v. Wallace, 239 Mo.App. 979, 195 S.W.2d 881; In re Moody’s Estate, 229 Mo.App. 625, 83 S.W.2d 141; State ex rel. Weast v. Moore, 164 Mo.App. 649, 147 S.W. 551.

The appellant mentions in his brief the admitted fact that respondent Fidelity and Casualty Company has for years collected premiums on its policy covering the liability of respondent Star Novelty Company for the Workmen’s Compensation, which premiums were based on the latter’s payroll which included the amounts drawn by the appellant. However that may be, the Soars case is final authority also on that feature, appearing likewise therein, and it is stated in 142 S.W.2d at page 871: “If any insurance company overcharges, or makes an improper or fraudulent charge, rights may be created against it which could be enforced at law or in equity, but that would not authorize the Workmen’s Compensation Commission to make awards to persons excluded by the terms of the Act or to exercise any authority that the Legislature has denied it.”

From the foregoing, we conclude that the judgment of the Circuit Court, affirming the ruling of the Workmen’s Compensation Commission, should be affirmed. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DEW, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the trial court, affirming the ruling of the Workmen’s Compensation Commission, is accordingly affirmed.

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

RUDDY, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    Paul H. BURG, (Plaintiff) Respondent, v. BONNE TERRE FOUNDRY COMPANY, a corporation, (Defendant) Appellant.
    No. 30925.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Rehearing Denied March 19, 1962.

      Robert A. Mcllrath, 'Flat River, for appellant.
    Roberts & Roberts, Farmington, Robert H. Dierker, St. Louis, for respondent.
   SAMUEL A. DEW, Special Commissioner.

Respondent sued in two counts to recover commissions due him for services rendered to appellant. In Count I he claimed under an oral contract of employment for commissions earned to September 19, 1958. In Count II he sued to recover commissions under a written contract of employment over a period ending December 31, 1959, the appellant having terminated the written contract as of January 1, 1960. Also, under Count II he sought to recover commissions on sales made between January 1, 1960, and May 18, 1960, to customers previously solicited by him. Further, under Count II respondent sued under the same contract to recover $2500, the alleged price (par value) for which appellant had agreed to repurchase from respondent 25 shares of its capital stock previously sold to the respondent by the appellant, which provision for repurchase appellant had failed and refused to perform.

A judgment for respondent was rendered in the total sum of $5,385.98, with a provision that $2500 thereof would be satisfied upon deposit by respondent of his certificate of said stock with the clerk, duly endorsed, and the payment therefor by the appellant of $2500. From such judgment the appellant has taken this appeal.

Under the pleadings and certain stipulations made at the trial, the only present controverted issues are whether it was the duty of the respondent to plead and prove the legality of appellant’s promise to repurchase its stock; whether it was error to admit oral evidence as to what the appellant promised to pay to repurchase the stock; and whether the Court erred in allowing commissions on any sales made after the contract was. canceled.

According to the evidence the respondent, then a salesman for appellant since May 15, 1958, under an oral agreement for employment, entered into a written contract with appellant dated September 19, 1958. The appellant company was engaged in the manufacture and sale of iron, alloy iron and steel castings. By virtue of the written contract respondent was appointed Sales Representative of the company in a certain described territory. The provisions of the written contract, so far as pertinent to the issues here involved, were that respondent should receive 10 percent commission on all net sales made on orders promoted through respondent in his territory, less freight, commissions payable on the 15th of the month following payment by the customer, respondent to pay all of his expenses incurred incident to his services; the contract to remain in force for one year, to be automatically renewed thereafter unless canceled by either party upon 60 days’ notice given in writing at any time after one year; that if respondent requested the cancellation, the commissions were to stop automatically at such time and all commissions on sales made to date of cancellation to be paid; but that if appellant should cancel the contract, the commissions would continue to be paid respondent on sales made to his customers unless otherwise mutually agreed; that respondent, at appellant’s request, had theretofore purchased and paid for 25 shares of stock at $100 per share (par value) and that “the aforementioned twenty-five shares of stock at one hundred dollars ($100.00) par value shall be purchased from the 'Sales Representative, if the contract is terminated.”

By virtue of the answer and the stipulations referred to, it was admitted that $533.15 was due respondent under his Count I to which the Court added interest of $27.35, making a total sum of $560.70; that appellant owed respondent $647.61 on sales through December 31, 1959, to which the Court added interest of $33.70, total $681.31; and that the total sales after the termination of the contract to customers previously solicited by respondent was $15,-872, on which the Court allowed respondent 10 percent commission in the amount of $1587.20, to which the Court added interest of $56.57, a total of $1643.97, making an aggregate sum allowed respondent on account of commissions, $2885.98. To this the Court added $2500, as stated, as the agreed purchase price of the repurchase of the capital stock, making the total judgment $5,385.98.

Respondent testified that he entered into the performance of his duties under the written contract and that the amounts stipulated as due him for commissions were true and correct; that as stated in the contract he had purchased and received a certificate for 25 shares of the company’s stock as agreed, for which he paid the appellant the par value of $2500. He identified and introduced a letter received by him from appellant dated November 10, 1959, which read:

“Dear Mr. Burg:
“This letter is to inform you that the Sales Representative Agreement which was signed by us Sept. 19, 1958 will not be in effect after January 1, 1960. At that time a new agreement will be discussed.
“Yours very truly,
“(S) Bonne Terre Foundry Co.”

Respondent testified that the foregoing letter was the first notice he received of appellant’s intention to cancel the existing written contract.

Respondent further testified that he received a second letter from appellant which was dated December 21, 1959. That letter referred to the previous letter, reiterated the statement that a new contract with respondent would be drawn up after January 1, 1960, as the existing contract would then be expired; that the commissions in the new contract would have to be cut to 5 percent and that the new contract would have to exclude any binders on stock transactions. The letter invited respondent to come in or write and state his intention. Respondent stated that no new contract was ever entered into with appellant and he denied that he had ever informed the appellant that he was canceling the contract or was agreeable to its cancellation.

Referring to the clause of the contract reading: “the aforementioned twenty-five (25) shares of stock at one hundred dollars ($100.00) par value shall be purchased from the Sales Representative, if this contract is terminated,” respondent testified that the price to be paid on repurchase was to be $100 per share, the par value. He stated that he was ready and willing to deliver the stock upon payment of $2500 therefor, and had been ready and willing to do so since January 1, 1960. He said the stock had not been repurchased by appellant.

On cross-examination respondent said he considered the contract terminated as of January 1, 1960. He said the contract was prepared by him, with some outside assistance ; that it was not signed at a directors’ meeting, but in the office of the company; that it was not signed on the exact date shown; that he could not recall whether it was actually signed as late as December; that he was a member of the Board of Directors at that time, but resigned at the annual meeting in November, 1959; that he learned afterwards that 10 shares of stock were purchased at the time by appellant from Jack King, but that he had nothing to do with that transaction. He said that when he resigned from the Board of Directors in November, 1959, there had been rumors of a new contract at that time; that he told appellant he had not made up his mind about entering into any proposed new contract.

On the part of appellant its president testified that the existing contract was signed some time in December, 1958; that the personnel of the Board was changed in November at the annual meeting; that the secretary-treasurer and the witness were authorized to agree upon the matter of a contract with respondent; that the present contract was later signed in the offices of the company in December. He said that since his letter terminating the contract he had frequently called respondent and asked him to come in and talk over the question of a new contract, but that respondent replied that he did not know the answer and “hung up.”

Effort was made to show that respondent bought 10 shares of the stock from Jack King and 15 shares from appellant, but the evidence plainly shows that the respondent paid appellant $2500 and received from it a certificate for 25 shares. A stock certificate for 10 shares issued to Jack King and surrendered by him June 7, 1958, was introduced by appellant. Noted thereon are the words: “Surrender this certificate 6/7 — 1958 for Paul H. Burg (No. 16).” Appellant’s brief and the transcript are incorrect in quoting the above notation to read “to” Paul H. Burg, instead of “for” Paul H. Burg. The certificate in evidence plainly uses the word “for.”

In rebuttal respondent said he never owned any stock in the company other than the certificate for 25 shares described and shown in evidence.

Appellant’s first point of error is that the judgment was contrary to law and public policy in that the respondent did not plead and prove that appellant under the law¿ and statutes could legally repurchase its own stock. As noted, the appellant in its answer pleaded generally that it was beyond its power and authority to repurchase its own stock, and that it would be violating the law by so doing, and that respondent had knowledge of that fact; but appellant did not plead or prove any facts on which those conclusions of law and fact were founded, nor did respondent plead or prove any facts relative to that charge.

The present statute, Section 351.390, 1959, V.A.M.S., was enacted in 1943, and specifically vested authority in corporations to purchase their own stock if such purchase will not impair their capital. It provides, in part, as follows: “A corporation shall have power to purchase, * * * its own shares; provided, that it shall not purchase * * * directly or indirectly, its own shares when its net assets are less than its stated capital, or when by so doing its net assets would be reduced below its stated capital. * * * ”

However, appellant asserts that it was the burden of respondent, claiming under a provision of the contract for repurchase of its stock by the corporation, to plead and to prove that the agreement to repurchase the stock was not illegal, and maintains that without such pleading and proof the judgment is illegal and contrary to public policy. For this point appellant relies upon the principle recognized in certain cases cited, that where one seeks to recover on a statutory cause of action and the same statute and section thereof relied upon also prescribe the exceptions thereto, the petition and proof thereon must show that the claimant is not within such exceptions, but that if the statute creates a general liability, any exceptions thereto created in other sections or statutes must be pleaded and proved by the answer as matters of defense. Nichols v. Davidson Hotel Co., Mo.App., 333 S.W.2d 536, 546; Gardner v. Linwedel, Mo.App., 192 S.W.2d 613; Warren v. American Car & Foundry Co., 327 Mo. 755, 38 S.W.2d 718. Both parties, respectively, argue extensively as to the applicability of this rule of law to the case at hand.

Whatever may be said as to the effect of the above stated principle of law bn the burden of pleading and proof in the instant case, relative to the illegality of appellant’s agreement to repurchase its stock from respondent, and respondent’s knowledge thereof, we believe the question here raised is determined by Section 509.090, 1959, V.A. M.S. (Session Acts 1943, p. 353, Sec. 40) and Supreme Court Rule 55.10, V.A.M.R. which statute and rule are identical. We believe they are binding on the Court and upon the parties. They provide that: “In pleading to a preceding pleading, a party shall set forth affirmatively * * * illegality * * * and any other matter constituting an avoidance or affirmative defense. * * * ” Accordingly, it was the statutory duty and burden of the appellant in its answer to respondent’s petition to plead and to prove its charge of illegality in its promise to buy back its shares of stock sold by it to respondent. It did so plead in general terms in its answer and it was generally denied in respondent’s reply, whereupon it became the burden of appellant to sustain its defense of illegality. Appellant, not having offered any proof to sustain its statutory burden, the respondent’s failure to do so cannot invalidate the judgment in his favor.

Appellant next contends that it was error to permit oral evidence as to what price appellant agreed to pay for the repurchase of respondent’s stock. It calls attention to the fact that respondent drew the contract and therefore it should be construed strictly against him; that the written contract does not state what amount was agreed upon for such repurchase, but merely states: “The aforementioned twenty-five (25) shares of stock at one hundred dollars ($100.00) par value shall be purchased from the Sales Representative, if this contract is terminated.” Respondent’s counsel took the position that in this respect the contract was ambiguous on the subj ect and that oral evidence was permissible to prove that the price agreed upon was the price paid by respondent, namely, the par value of $100 per share, $2500 for the total 25 shares. Appellant’s counsel urged that the contract agreed on the number of the shares, their identification and par value, but not the price for such repurchase. If, as appellant contends, the price for such repurchase was intended to be left open, the respondent could demand a fabulous price or the appellant could have stood on a ridiculously low price, and thus the purchase clause would have served no purpose. Such construction would appear unreasonable. Furthermore, the respondent, while a witness, was asked if there was an agreement on the price for the repurchase and his answer that “it was understood $100 per share,” was stricken out on motion as a conclusion of the witness, but later he testified without objection as follows: “Q. (By Mr. Roberts) Was there an agreement made between the two of you as to what they would pay back for the stock if it was repurchased — that’s what I am asking you, Mr. Burg ? A. There was. Q. And what were they to pay you for it, sir? A. $100.00 per share. Q. Now, has that ever been paid, Mr. Burg ? A. It has not.”

The trial court construed the language of the contract to mean that the par value of $2500 paid by respondent for the stock when he entered into the contract was to be the price for the repurchase. The Court in its Finding of Facts found that such was the ordinary meaning of the words of the agreement; that if any other amount had been in mind, surely the parties would have said so. We construe the contract likewise and conclude from its terms and surrounding circumstances in evidence that its intended purpose was to reimburse respondent fully for his stock investment in the company if his employment were terminated.

Lastly, the appellant makes the point that the Court erred in allowing respondent 10 percent commission on all the orders given by companies to the defendant after the contract was terminated, to-wit: January 1, 1960. For this item, as shown, the Court allowed $1643.97, inclusive of interest, for the period ending May 18, 1960. The two paragraphs of the contract on the subject are as follows:

“If the Sales Representative asks that this contract be cancelled the commissions will automatically stop when the contract is cancelled. Commissions to be paid in full for all sales made up to date of cancellation.
“If the Company cancels this contract the commissions will continue to be paid the Sales Representative for his customers unless some mutual agreement is reached between the Company and the Sales Representative.”

It is contended by the appellant that the second paragraph above quoted is unilateral and perpetual if respondent refuses to make any other agreement. The respondent insists that the sales for the period there in question are meant to be only those sales on orders from such customers as had already been solicited by him as agent. The trial court so construed the wording. In fact, the amount allowed by the court on that classification of commissions was based on a total of sales stipulated by both parties as follows: “Also, it is further stipulated as to Count II that the amount of net sales made by defendant from January 1, 1959 [should be January 1, 1960] through May 18, 1960, on orders from customers previously called upon by plaintiff was $15,872.00; and it is further stipulated that the plaintiff did nothing during said period to procure said sales for defendant.” Furthermore, upon the admitted termination of the contract, the authority of the respondent to solicit for the appellant would cease and he would no longer have any legal customers so far as the appellant’s merchandise was concerned. As stated in Clarkson v. Standard Brass Mfg. Co., 237 Mo.App. 1018, 170 S.W.2d 407, 415, cited by the appellant, containing some similar facts as here relative to the termination of a salesman’s authority: “A contract will not be construed to impose an obligation in perpetuity unless the unequivocal language of such contract compels such construction, and when executed for an indefinite period, and by its nature it is not deemed to be perpetual, it may be terminated at will upon reasonable notice,” and “After the cancellation of the contract his (the agent’s) employment ceased.” See 17 C.J.S. Contracts § 398, p. 887; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262.

As was said in Paisley v. Lucas, supra, as to the construction of a contract, at page 268: “For the purpose of determining the intention of the parties and reaching a construction that is fair and reasonable under all the facts and circumstances, the court may consider the relationship of the parties, the subject matter of the contract, the usages of the business, the surrounding facts and circumstances attending the execution of the contract and its interpretation by the parties.” In our opinion the charge of the appellant that the clause of the contract under consideration is invalid as unilateral and perpetual, is without merit.

Finding no error in the trial of this case materially affecting the merits, the judgment of the trial court should be affirmed. The Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by DEW, Special Commissioner, is adopted as the opinion of the Court.

The judgment of the trial court is accordingly affirmed.

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

RUDDY, J., not sitting.


author: BRADY, Commissioner.

text:
    Dennis C. POLLARD, a minor, by Lorna Pollard, his natural guardian and next friend, Plaintiff-Respondent, v. Ellen DECKER, Defendant-Appellant.
    No. 30821.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 19, 1962.

      Charles F. Hamilton, F. Douglas O’Leary, Moser, Marsalek, Carpenter, Cleary, Jaeck-el & Hamilton, St. Louis, for appellant.
    Theodore H. Hoffman and Joseph W. Toeniskoetter, St. Louis, for respondent.
   BRADY, Commissioner.

The respondent, a minor, instituted this suit by his natural guardian and next friend, seeking to recover for personal injuries which he allegedly sustained when, as a pedestrian, he was struck by the appellant’s automobile. Trial was before the jury and resulted in a verdict and judgment in favor of the respondent in the amount of $10,000. Upon the overruling of her after trial motions, the appellant filed and has perfected her appeal to this court. For the sake of clarity we will hereinafter refer to the parties by their designation at the trial.

The accident occurred on Park Avenue, which generally runs in an eastwardly-west-wardly direction in the City of St. Louis. The street has room for four cars; that is, with a car parked at each curb there is room for an automobile to proceed in each direction. It was stipulated that the street is 36 feet wide at the point where the accident took place. It was about 5:20 or 5:30 in the afternoon and still daylight (August 21, 1959) with good visibility. The streets were dry.

The defendant contends on this appeal that: (1) the court prejudicially erred in giving of plaintiff’s verdict directing instruction; (2) it prejudicially erred in its rulings on the objections to argument by both counsel concerning the plaintiff’s failure to testify; (3) the trial court prej-udicially erred in refusing to declare a mistrial when plaintiff’s counsel injected plaintiff’s congenital heart condition into the case during opening statement; and (4) .the verdict was grossly excessive. In view of the issues thus presented and the verdict for the plaintiff, we will review the evidence in the light most favorable to the plaintiff.

Reviewed in such a light, the evidence shows that the plaintiff, 6 years old at the time of the occurrence, was seen by the witness Harrison, who was standing in the door of his pool hall, to walk along the south side of Park, going eastwardly, to a point just before he came in front of the witness; that this witness owns a 1949 green Pontiac automobile which was parked with the tires against the curb facing east in front of his establishment; that the plaintiff walked past the rear of this car to the front of it and turned to enter the street at a point about a foot from the bumper of the car; and that, still walking, the plaintiff passed in front of the car until he reached the left front of it where he stopped, put his hand on the fender of the car just above the headlight and looked westwardly, but did not then, or at any time, look eastwardly, the direction from which the defendant was approaching. Both this witness and the witness Janes, who was looking out of a window of his living room on the second floor of a building across the street from the pool hall, testified that plaintiff was stopped at that point for about three seconds. The evidence further shows that there was no eastbound traffic and the plaintiff then proceeded at a pace described by the witness Janes as a “trot” straight across the street and collided with the defendant’s automobile at the front of the left rear fender at a place on the street about one foot across or to the north of the center line of Park. On impact the plaintiff’s feet went out from under him and under the car, which ran over his legs. A portion of the defendant’s deposition was read into evidence, in which defendant gave her speed as 25 m. p. h. and the witness Harrison testified that her automobile did not increase or decrease its speed nor sound its horn nor swerve from the time he first saw it, when the plaintiff was three or four feet from it, until the impact occurred. It further appeared from the testimony of the witness Nazworth that there was no other car parked on the south side of Park to the east of the Harrison Pontiac. It also appeared from the deposition of the defendant as read into evidence that the defendant’s automobile, its brakes, tires and horn were in good working condition and that there was good visibility at the time of the accident; that there was another automobile three car lengths ahead of her; that she was going about 25 m. p. h. “ * * * when the accident happened * * * ”, that she never saw the plaintiff prior to the impact nor did she know whether he was running or walking; that she stopped the car about four car lengths from the boy as he lay in the street and ran back to him; that she stopped as soon as she could, it was not an emergency stop; and that she did not swerve or sound her horn before the accident.

The plaintiff’s medical evidence was given by a Dr. Stephens, who first examined the plaintiff on January 11, 1960 and testified that the plaintiff had a healed fracture of the shaft of the right femur at the juncture of the middle and upper thirds; that there was moderate lateral and mild posterior bowing and a ¾ inch shortening of that leg; that the use of wires to hold the fracture in position had caused some scarring which had healed; that there was mild synovial thickening of the right knee, some limitation in motion of the knee; that there was a 28 degree angulation of the fracture; that there was a marked limp and that a resulting pelvic tilt would tend to cause arthritis to develop. Upon second examination, some ten months later, the testimony was that there was no longer any limitation in knee motion but the synovial thickening and slackness of the right collateral ligament were still present, as was a few degrees of limitation of external rotation of the plaintiff’s right hip and the pelvic tilt and scoliosis found at the earlier examination. The doctor testified that even if an operation were performed, there would always be some shortening, although “ * * * it may not be three quarters of an inch, probably be much less. * * * ” The limitation of the hip motion and some slackness of knee ligaments would also remain. His opinion was that surgery would only reduce the severity of plaintiff’s injuries and not result in complete correction of the conditions stated, which were permanent, and further gave as his opinion that natural improvement with respect to this shortening and other conditions would take place, but to what extent the shortening of the leg would improve he refused to say.

The plaintiff’s mother testified that he was in the hospital from August 21, 1959 to September 11, 1959, and while there was in traction for three weeks; that plaintiff was in a cast for four months, and it was about a month after he got out of the cast before he began to walk; that she told him not to play baseball or football; and that he hobbles when he runs and doesn’t run like other children, who don’t want to play with him.

While plaintiff’s counsel was making his opening statement, the following occurred:

“The evidence will show that at the time of this occurrence he was in reasonably good health. He had never sustained any disabling injuries to his legs. The evidence will show and it will be in the hospital record that the little boy had a congenital heart trouble which is not connected with this accident.
“MR. HAMILTON: Object to any such statement. It has nothing to do with the facts of this case.
“MR. HOFFMAN: That is what I was telling them.”

The defendant’s counsel, out of the hearing of the jury, then moved for a mistrial, which motion the trial court denied.

In his closing argument, the defendant’s counsel began to comment upon the plaintiff’s failure to testify. The occurrence was as follows:

“ * * * These parked cars were there. Mrs. Hurley told you that they were there and she saw the little kid running out between these parked cars. He wasn’t stopped in front of this headlight. This is sf-ictly purely thumbo. And unfortunately we didn’t get to hear it from the little boy himself. Now, he is almost eight years old. Mr. Hoffman didn’t see fit to put the little boy who was then seven years old or almost seven years old on the stand to tell us.
“MR. HOFFMAN: Your Honor, object to that. His deposition was taken by Mr. Hamilton.
“MR. HAMILTON: Just a moment, I will—
“MR. HOFFMAN: He should know what he knows and he could have called him himself. He knows what the boy knows about it.
“MR. HAMILTON: I object to that, if the Court please. The witness is not equally available to me as he is to the plaintiff himself.
“THE COURT: In view of the age of the boy, I sustain the objection.”

In his closing argument, the plaintiff’s counsel went to the same subject, and this occurred:

“ * * * Now, he talks about, why didn’t I put the boy on the stand. He had an opportunity and availed himself of that opportunity—
“MR. HAMILTON: If the Court please, object for the record. I would like to obj ect—
“MR. HOFFMAN: I want my time saved.
“THE COURT: Very well.
“MR. HAMILTON: Objected to on the ground that the plaintiff himself was not equally available to me as a witness under the law as he was to Mr. Hoffman.
“THE COURT: Overruled, in view of the age of the plaintiff, objection will be overruled.
“MR. HOFFMAN: He knew what that boy had to say.
“MR. HAMILTON: Object to that. No evidence whatever that I knew what this boy would have to say.
“MR. HOFFMAN: Did you take his deposition?
“MR. HAMILTON: Object to that. No deposition evidence whatever.
“THE COURT: Sustained. No evidence as to what Mr. Hamilton knew about the boy’s testimony.
“MR. HOFFMAN: Alright. Well, let it just be this. Had I put the boy on the stand, and you all heard from everybody in the case that the boy hadn’t seen anything. He was looking the other way because had he seen the car coming, he wouldn’t have certainly run out and tried to maim himself. Had I put him on the stand, Mr. Hamilton would have had his favorite argument in this case and every other case, sympathy, passion, sympathy, passion. Well, I want to try it aboveboard and I think that is the way the boy wants it treid (sic). I things he wants—
“MR. HAMILTON: Object to any such argument as to what I do in this case or other cases. I want to try it aboveboard just as much as Mr. Hoffman does.
“THE COURT: Very well; sustained.”

Plaintiff submitted upon primary negligence in failure to keep a lookout and to warn. The pertinent part of Instruction No. 1, plaintiff’s verdict directing instruction, is as follows:

“ * * * and if you further find that the defendant failed to keep a careful lookout ahead and laterally as she approached the place where said collision occurred and that such failure, if any, was negligence; and if you further find and believe that defendant, in the exercise of the highest degree of care, could have seen plaintiff upon said street and should have known that there was a probable danger of collision between plaintiff and defendant’s automobile, if you so find, in time thereafter, under the circumstances and conditions then and there existing, to have avoided the collision and injuries to plaintiff, if any, -by sounding an effective warning of her approach, if you so find, but that defendant failed to do so, and if you further find that in so failing defendant failed to exercise the highest degree of care and was negligent * * * ”

The defendant’s attack upon the instruction is to the effect that if the instruction “ * * * had related the required finding of ability of defendant to have seen plaintiff in a particular location such as standing by the left front fender of the Pontiac or to particular movements such as walking out in the street and stopping, as shown by plaintiff’s evidence, the instruction might be considered sufficient.” It is prejudicially erroneous, defendant contends, to give an instruction under the facts of this case which relates defendant’s ability to have seen plaintiff only to the phrase “ * * * upon said street * * ⅜.”

The defendant candidly admits that she can find no such ruling in the reported cases of this state, and neither were we able to do so. On the other hand, there are several cases that lead to exactly the opposite result. For example, in Asher v. Griffin, Mo.App., 342 S.W.2d 255 at loc. cit. [1, 2] pp. 257-258, this court, by Anderson, P. J., held:

"[1, 2] It is the duty of the operator of a motor vehicle to keep a careful or vigilant lookout ahead for other vehicles on or near the highway; and in order to fulfill this duty he must look in such an observant manner as to enable him to see and discover such conditions as one, in the exercise of the highest degree of care for his own safety and the safety of others, would be expected to see under like or similar circumstances. (Citing cases.) This duty is uniform and constant and, if the driver of a motor vehicle under such duty fails to see what is plainly visible, he is guilty of negligence and liable for its consequences. (Citing cases.)”

In that case, this court ruled upon the very point defendant here presents. The instruction in that case read, “ * * * and if you find that defendant failed to keep a constant and careful lookout ahead for other vehicles on and near Manchester * * * .” (Emphasis supplied.) At loc. cit. [5, 6] p. 259 (342 S.W.2d 255) this court held that:

“ * * * The above cases aré not to be construed as requiring a submission of evidentiary facts not necessary or essential to a finding upon the issue or issues specifically submitted. Knight v. Richey, supra [363 Mo. 293, 250 S.W.2d 972].
“The Instruction did submit facts essential in law to support a verdict for plaintiff, of which there was substantial evidence, and in our opinion the inclusion of further evidentiary matters was not necessary to the validity of the Instruction.”

In Anderson v. Bell, Mo., 303 S.W.2d 93, an instruction which required the jury to find that Bell could have seen the automobile in which Anderson was a passenger “ * * * being driven southwardly on Broadway * * was held sufficient when subjected to what was essentially the same attack which defendant here presses.

It should be pointed out that while as we here hold, and as held in the Asher and Anderson cases, this instruction did hypothesize the essential facts to be found to authorize a verdict for plaintiff upon the negligence submitted, this does not mean that the factual situation as shown by defendant’s evidence and which would have authorized a verdict for her was not presented to the jury. Instruction No. 3, offered by defendant and given by the court, covered the defendant’s theory as substantiated by her evidence. This assignment of error is ruled adversely to the defendant.

The defendant’s contention of prejudicial error regarding the trial court’s action in sustaining an objection to his attempt to comment on the failure of the plaintiff to testify has no merit. Plaintiff was six years of age when the accident happened, and was seven years of age at the date of trial. Section 491.060 RSMo 1959, V.A.M.S., provides:

“The following persons shall be incompetent to testify:
“(2) A child under ten years of age, who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly; * *

It has been repeatedly held that it is the duty of the trial judge to determine the competency of witnesses, and when his decision is based on sufficient examination and observation of the child as to its competency, it can only be set aside when he has abused his discretion. State v. Jones, 360 Mo. 723, 230 S.W.2d 678. This determination is made by examination out of the jury’s presence. Hildreth v. Key, Mo.App., 341 S.W.2d 601. In the instant case, no such examination was requested by either party or made by the court. In State v. Groves, Mo., 295 S.W.2d 169, it was held that while there is no precise age at which a child can be considered competent, § 491.060(2), supra, precludes any presumption that an infant under the age of 10 years is capable of receiving just impressions of facts or of relating them truly. See also Baker v. Baker, Mo.App., 319 S.W.2d 11 at loc. cit. p. 16. Accordingly, until there has been a judicial inquiry and determination that a child under 10 years old has been showh to be capable of receiving just impressions of fact and of truly relating them, such a child as the plaintiff is incapable of testifying. As we understand it, the defendant does not really contend otherwise but insists that if the plaintiff wants to avoid comment upon his failure to testify, the plaintiff should have had this inquiry as to his competency as a witness made, and that since the plaintiff did not do so, comment is allowable. We cannot agree. Where a party is incompetent absent a showing of competence, or, put another way, declared to be so by statute absent a showing why the statute is inapplicable to that plaintiff, as plaintiff was in this case under the provisions of § 491.060(2), supra, then no comment can be made upon the failure of that party to testify. The disability under which the plaintiff labors is one of statute and not of his own choosing or the result of his own actions, and thus he should not, as defendant urges, be compelled to substantiate the application to himself of the statutory disability as a witness provided by § 491.-060(2), supra. The very basis of the rule allowing comment upon a party’s failure to testify illustrates why that rule should not encompass those who are incompetent under the provisions of § 491.060(2), supra. Generally in a civil action, counsel may comment upon a party’s failure to testify if there is a basis for drawing an unfavorable inference against a party on account of his failure to testify because he had knowledge of the facts and circumstances vitally affecting the issues on trial. Beasley v. Athens, Mo.App., 284 S.W.2d 62. In the instant case, there can be no presumption that the plaintiff had such knowledge, or that if he had knowledge, could truly relate it. § 491.060(2), supra; State v. Groves, supra.

As to the trial court’s action with regard to overruling the objection by defendant’s counsel when plaintiff’s counsel attempted to go into this same matter, the trial court had just previously held, correctly as we herein rule, that no comment was to be made upon the subj ect, and in doing so sustained the objection made by plaintiff’s counsel. Yet plaintiff’s counsel then attempted to go into the same matter and the trial court overruled defendant’s objection. This was erroneous, both because it went into what was previously ruled to be a closed subject, and because it is obvious that plaintiff was not as available to the defendant as to the plaintiff. Block v. Rackers, Mo., 256 S.W.2d 760, at loc. cit. page 764. It requires no citation of authority to substantiate that only when it is prejudicial does an erroneous ruling require reversal. We have set out the entire occurrence in the statement of facts to illustrate that even though the trial court erroneously overruled defendant’s objection, upon a careful consideration of this entire transcript we are convinced that this action in the trial court did not constitute prejudicial error.

There is no merit in defendant’s contention that the trial court erred in its refusal to declare a mistrial when plaintiff’s counsel during opening statement mentioned the plaintiff’s congenital heart condition. As recited in this summary of facts at the beginning of this opinion, the plaintiff’s counsel in doing so stated that the congenital heart trouble “ * * * is not connected with this accident.” Moreover, a matter such as this lies within the exercise of proper discretion by the trial court who heard the statement given in the inflection of voice which was used, and with respect to the other circumstances surrounding it. The matter was not again mentioned during the trial. It should also be noted that defense counsel did not ask for any other relief than a mistrial. He did not request the statement to be stricken, or that the jury be instructed to disregard it.

The defendant contends that the verdict was grossly excessive. An appellate court should not disturb a verdict as excessive, unless it is for an amount in excess of the very most that the proof of damages would reasonably sustain and then only when it is so grossly excessive of that amount that it shocks the conscience of the court. Asher v. Griffin, supra. In determining excessiveness, the reviewing court views the evidence in the light most favorable to the plaintiff. Appelhans v. Goldman, Mo., 349 S.W.2d 204. A consideration of the evidence of the plaintiff recited herein which bears upon this question, when viewed in the light we are required to take of that evidence, convinces us the defendant’s contention is without merit.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

RUDDY, Acting P. J., WOLFE, J., and SAM C. BLAIR, Special Judge, concur.

ANDERSON, P. J., not participating.


author: HARRY A. HALL, Special Judge.

text:
    Harry F. SCHNEIDER, (Plaintiff) Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, (Defendant) Appellant.
    No. 30873.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Rehearing Denied March 19, 1962.

      H. P. Tudor, Edward P. Burke, Strubin-ger, Tudor, Tombrink & Wion, St. Louis, for appellant.

      Charles T. Herrmann, James J. Butler, Hough, Herrmann, Nichols, Hormberg & Filippine, Clayton, for respondent.
   HARRY A. HALL, Special Judge.

This is an action for personal injuries by plaintiff, Harry F. Schneider, against the defendant, Southwestern Bell Telephone Company, as owner and occupant of the building in which plaintiff was installing air-conditioning equipment. Plaintiff received an electric shock when he started to connect an air-conditioning unit which had been placed on an exposed electric wire. The jury awarded plaintiff $10,000 damages and defendant has appealed, assigning as error (1) the court’s failure to sustain its motion for directed verdict; (2) the giving of plaintiff’s verdict-directing Instruction No. 6; and (3) the court’s failure to sustain defendant’s motion for new trial because of the excessiveness of the jury’s verdict.

The facts show that defendant undertook to install combination air-conditioning and heating units in its downtown St. Louis building and employed three independent contractors to do separate portions of the work. Plaintiff’s employer, Sodemann Heat and Power Company, handled the metal work and piping, including the delivery! of the units in the building; E. C. Dorsch Electrical Company did the electrical work; and Woermann Construction Company did the building and carpentry work. Plaintiff and his helper, Charles High, positioned and connected the units, and prior to February 15, 1956, the date of the accident, they had installed between fifty and sixty units, which were made of metal and were connected to copper tubing in the walls, which led to a central cooling and heating system. The unit in question was some 40 inches high, 55 inches long, 10 inches wide, and weighed about 200 pounds. The Woermann Company had previously prepared the walls and cut the baseboards so the units would fit flush with the walls. The Dorsch Company, in doing the electrical work, had placed temporary wiring at various places throughout the building, including room 604, where plaintiff was injured. This wiring ran along the baseboard, and at the openings where the baseboard had been removed it ran along the floor. At the opening in question, the wire looped out on the floor some six inches from the wall.

Room 604 was used by radio technicians employed by A. T. & T. and contained a bank of wet batteries on metal racks placed some three feet from the wall and close to the unit in question. Plaintiff had been warned of the batteries and had covered them with an asbestos sheet, but no warning had been given concerning the wiring. Plaintiff and High connected two units on the south wall the day before the accident, and at that time the unit in question was standing three or four inches from the wall in the same position where it was when plaintiff was injured. Neither saw the temporary wiring in this room prior to the accident, and both stated it was dark where the unit was located. Nor did plaintiff notice the wire at the time he kneeled down on the floor to inspect the connections prior to soldering the coupling.

As he touched the copper connection, he received a shock which threw him against the battery rack and to the floor. His coworker, Charles High, helped him from the room and he was taken to a doctor, who treated him. High inspected the unit immediately after the accident and stated “the wire was bare for one or one and a half inches and looked like they used scrap to put in there.” It was “spliced and taped and looked like someone had taken a knife and torn it off and like it was done where the unit had been set down on it.” The unit on testing registered an electrical charge of 110 volts where plaintiff had touched it.

The evidence does not disclose when the unit was placed in room 604, but it was sometime prior to February 14, the day before plaintiff was injured.

Defendant contends that plaintiff failed to make a submissible case in that the evidence did not show that defendant had actual or constructive notice superior to plaintiff, or actual knowledge of the unsafe condition, or that defendant had negligently permitted bare temporary wiring at random on the floor in room 604.

The law is well settled that defendant, as owner and occupant of its building, has the duty to exercise ordinary care and diligence to have its building in a reasonably safe condition for the use of an employee of an independent contractor who occupies the position of a business invitee. Where such employee is engaged in working on defendant’s premises, the owner has a nondelegable duty to warn him of any condition unknown to him that was not safe or could not be made safe. In McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788, 1. c. 794, where plaintiff, an employee of an independent paint contractor, was injured when he came in contact with an exposed 440 volt electric conduit while painting the McDonnell building, the court said:

“McDonnell did have a nondelegable duty to Hartman’s employee, Arbuckle, with respect to the condition of its premises where he was to work and certainly to warn him of any condition there, unknown to him, that was not safe or could not be made safe. (‘The servant working on his master’s premises is a business visitor and entitled to the protection of one,’ Prosser, 374-376; and this obligation extends to the servants of an independent contractor working on the premises, Prosser, 374, note 6.)”

Ryan v. St. Louis Transit Co., 190 Mo. 621, 89 S.W. 865, 2 L.R.A.,N.S., 777; Szofran v. Century Electric Co., Mo.App., 255 S.W.2d 443.

Our courts have described electricity “as one of the most dangerous agencies ever discovered by human science.” See Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S.W. 654, 1. c. 659, 661, where, in holding the defendant light company liable for the death of a sign man who was shocked when a support wire of a street sign he was removing from a building fell across defendant’s electric line which had worn and faulty insulation, the court said:

“ * * * and, owing to that fact, it was the duty of the electric light company to use every protection which was accessible to insulate its wires at all points where people have the right to go, and to use the utmost care to keep them so; and for personal injuries to a person in a place where he has a right to be, without negligence upon his part contributing directly thereto, it is liable in damages. * * *
“It was not necessary, in order to plaintiff’s recovery, to prove that at the exact point where the contact occurred the insulation was off the wire. If the defective insulation caused the injury without fault on the part of plaintiff, as he had the right to be where he was at the time of the injury, that was sufficient.”

In Ryan v. St. Louis Transit Co., supra, deceased, a pipe fitter employed by an independent contractor, was installing water pipe in defendant’s building beneath several overhead electrical wires on which the insulation was deteriorated when he received an electric shock. The court held: “ * * * the duty devolved upon the defendant of keeping the electrical wires near which the deceased was required to work in the performance of his duty in installing the oil pipes, so insulated and protected as to be safe for the deceased to work in their vicinity.”

Defendant employed Dorsch to install temporary wiring throughout the building, which was placed along the baseboard and ran on the floor across the openings where the baseboard had been removed for the cooling units. Unless secured, the wire could loop out away from the wall where it was subject to being stepped upon or otherwise damaged and the insulation broken. It extended some six inches out from the wall and was spliced and taped and looked as though scrap end had been used, and it was exposed for an inch or inch and one-half. Defendant’s duty under the law to provide a safe place to work cannot be avoided by employing independent contractors, since such duty is one that cannot be delegated.

Plaintiff was where he had a right to be and was proceeding to connect this unit exactly the same as he had connected some fifty to sixty units during the five months of his employment. If, as charged, the defendant permitted partially bare temporary wiring to be placed on the floor where plaintiff was required to be in the performance of his duties, it was negligent. The evidence of plaintiff supported this contention, and we rule plaintiff made a submissible case.

Defendant claims error in plaintiff’s verdict-directing Instruction No. 6 for (a) failure to negative its defenses of assumption of risk and negligence of fellow servant; (b) wrongfully placing a duty on defendant constantly to inspect the work of competent independent contractors to determine if their work rendered the premises unsafe; and (c) failing to include a finding that the dangerous condition would not have been known to its invitees in the exercise of ordinary care.

This instruction told the jury the defendant had “the duty * * * to exercise ordinary care to keep and maintain its premises * * * in a reasonably safe condition for the use of its invitees,” and to “exercise ordinary care to warn * * * of any dangerous things or conditions present in or about its premises” and if they further found plaintiff suffered an electric shock as he was preparing to install an air-conditioning unit and “was in the exercise of ordinary care for his own safety” and that defendant “permitted some partially bare temporary wiring to be placed at random on the floor”; that the air-conditioning unit was “resting on such partially bare exposed temporary wiring”; “that defendant failed to warn plaintiff of the danger of the partially bare temporary wiring”, that “defendant was negligent in permitting the partially bare wire to be placed” on the floor and was “negligent in failing to warn plaintiff of the presence of such partially bare temporary wiring” and that if “such negligence directly caused” plaintiff’s injuries, their verdict should be for plaintiff.

Defendant submitted its defenses of negligence of a fellow servant, plaintiff’s assumption of risk and contributory negligence in its instructions 2, 3, and 4, which were given by the court. Its instruction No. 2 advised the jury that defendant would not be liable if the plaintiff was injured as the result of the negligence of a fellow servant. Defendant’s instruction 3 told the jury that the plaintiff “assumed the risks from contact with the wires in question so far as such risks were as obvious or discernible to him as they were to the defendant or its employees, by the exercise of ordinary care.” Its instruction 4 directed a verdict for defendant if plaintiff “carelessly and negligently failed to keep a sufficient lookout for the presence of live electric wires touching the unit.”

The cause was submitted after December 22, 1959, when the rule announced in Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, became effective, and plaintiff had the duty to negative defendant’s affirmative defenses to avoid conflicting submissions. In the Moore case the court did not prescribe the manner in which such negation should be accomplished. However, in a subsequent opinion, Martin v. Kansas City, Mo., 340 S.W.2d 645, 1. c. 649, that court held that where plaintiff’s instruction required the finding that “plaintiff * * * was in the exercise of ordinary care for his own safety”, it sufficiently negated and did not conflict with the contributory negligence submission of the defendant, saying:

“A further contention of error is made in connection with plaintiff’s Instruction No. 1. It is said the instruction is erroneous in failing to require the finding that plaintiff did not know the hole was there, or, in the exercise of ordinary care, could not have seen the hole in time to avoid it. It is urged that this issue was an essential factual issue and should have been specifically included in plaintiff’s principal verdict-directing Instruction No. 1. But the instruction did submit the negative of plaintiff’s contributory negligence by requiring the finding that 'the plaintiff George Martin was at all times in the exercise of ordinary care for his own safety’; and at defendant’s instance the trial court gave Instruction No. 11 which directed a verdict for defendant if the jury found ‘that plaintiff saw, or, by the exercise of ordinary care, could have seen said hole in the parkway * * * and if y0u further find that plaintiff knew, or, in the exercise of ordinary care, could have known that said hole * * * rendered said parkway dangerous and unsafe for use by one in the exercise of ordinary care for his own safety, in time to have avoided said hole in safety by the exercise of ordinary care, but failed so to do * * * ’. Plaintiff’s verdict-directing instruction, as noted supra, negatived plaintiff’s contributory negligence, and defendant’s Instruction No. 11 submitted contributory negligence. See now Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, and Shepard v. Harris, Mo.Sup., 329 S.W.2d 1. We see no prejudicial fault in plaintiff’s instruction, No. 1, in any respect of which defendant complains. It would seem the instructions, read together, fairly submitted plaintiff’s case and defendant’s defense.”

See also Van Buskirk v. Missouri-Kansas-Texas Railroad Co., Mo., 349 S.W.2d 68; Taylor v. Hitt, Mo.App., 342 S.W.2d 489.

Plaintiff’s charge of negligence was that the defendant permitted exposed temporary wiring to be placed on the floor of its building where plaintiff was required to work and its failure to warn plaintiff thereof, and this was the negligence submitted in his instruction. It is immaterial to the issues whether the wire was actually placed there by an employee of an independent contractor, as shown by the evidence, or by an employee of defendant. A finding that defendant permitted it is equivalent to a finding that defendant knew it. Goodin v. Evens & Howard Fire Brick Co., Mo.App., 249 S.W. 736; Morton v. Hiram Lloyd Bldg. & Const. Co., 280 Mo. 360, 217 S.W. 831.

The defendant’s duty to furnish a safe place for plaintiff to work, being non-delegable, applies equally whether the dangerous consideration be caused by a fellow servant or an independent contractor, since the law will not permit defendant to shift this responsibility to anyone else. Warner v. Oriel Glass Co., 319 Mo. 1196, 8 S.W.2d 846, 60 A.L.R. 448; Soltesz v. J. H. Belz Provision Co., Mo., 260 S.W. 990; Williams v. Pryor, 272 Mo. 613, 200 S.W. 53.

The law has long been settled in Missouri that assumption of the risk relates only to those risks usual and incident to the employment and not to risks arising from the master’s negligence. Warner v. Oriel Glass Co., supra; Williams v. Pryor, supra.

Instructions are to be considered in combination and as an entirety, and the courts will look to the whole charge to ascertain if a jury composed of ordinarily intelligent laymen, reading all the instructions together, would not be misled. Elmore v. Kansas City, Mo.App., 333 S.W.2d 795; Machens v. Machens, Mo.Sup., 263 S.W.2d 724.

Under the instructions the jury found that plaintiff was in the exercise of ordinary care for his own safety and rejected defendant’s submission that plaintiff was negligent in failing to see or keep a lookout for exposed wire or negligently-assumed the risk of an obvious danger. As pointed out in Martin v. Kansas City, supra, the instructions, read together, fairly submitted plaintiff’s case and defendant’s defenses, and we find no prejudicial error in the giving of plaintiff’s instruction No. 6. Defendant’s contentions in this respect are therefore overruled.

A consideration of defendant’s complaint that the jury’s award of $10,000 was so excessive as to indicate bias and prejudice of the jury requires a review of the evidence in support of plaintiff’s claim.

The evidence discloses that plaintiff was 55 years old when he was injured and had engaged in physical work as a pipe fitter some 32 years. In 1947 he suffered a disc injury in his low back, which kept him off work some five months and because of which he was paid $2,475.00 in Workmen’s Compensation. He recovered and returned to his regular work, but did wear a back brace off and on for a year, and he continued to go to an osteopath for a weekly back massage, until his present injury. He worked steadily at his trade, and had been employed on defendant’s job some four and a half months.

This accident aggravated the condition and pain in his back and caused pain and numbness in his right leg, which was still present at the time of the trial some four years later. In addition, he has developed a Parkinsonian syndrome manifested by a tremor in the upper extremities, his head and face, which is progressive and will gradually become worse. This can be helped by medicine but cannot be cured. The accident was not the total cause of the Parkinson’s disease, but it did aggravate and excite its dormant condition, and it will get worse under stress, strain and anxiety, and with time. His back condition is chronic. He also has developed a functional nervous disorder or physiological change in his nervous system and emotional status secondary to his injury. About five weehs after the accident, he tried to work and was forced to quit after four days because of his shaky condition. Two months later he tried to work again and had to quit after five days for the same reason. He began working steadily in August, 1956, as a foreman and supervisor, which did not require physical exertion. There was evidence that plaintiff will not be physically able to do the work of a pipe fitter.

The permanent effects of plaintiff’s injuries were presented fully to the jury, and after considering the record we find that the verdict was not excessive and so rule against defendant on this contention.

The judgment of the trial court is accordingly affirmed.

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

RUDDY, J., not participating.


author: WOLFE, Judge.

text:
    STATE ex rel. Sam COATES et al., (Plaintiffs) Respondents, v. Leftwich PARCHMAN et al., (Defendants) Appellants.
    No. 30991.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.

      R. L. Witherspoon, Alphonse J. Lynch, St. Louis, for appellants.
    John Grossman, St. Louis, for respondents.
   WOLFE, Judge.

This is an appeal from a judgment finding the defendant Parchman and his attorneys, Alphonse J. Lynch and Robert L. Witherspoon, in contempt of court for an alleged violation of an injunction. The appeal was taken to the Supreme Court, but that Court held that it lacked jurisdiction of the appeal and transferred it to this Court. State ex rel. Coates v. Parchman, Mo., 346 S.W.2d 74.

The action giving rise to the injunction was instituted by the pastor and others claiming to be the officers of the St. Bethel Missionary Baptist Church. It was against Parchman and others who claimed that they constituted the officers of the church. The action sought a declaratory judgment declaring the plaintiffs to be the legal holders of the church offices that they asserted that they held. It also sought to restrain the defendants from interference with church affairs. The defendants answering sought similar declaration in their favor and an injunction against the plaintiffs.

The plaintiffs prevailed in the trial court, and the defendants were enjoined “from in any manner usurping the rights, powers and duties of plaintiffs as officers of said church; from interfering with or harassing plaintiffs in the performance of their duties; from interfering with or disturbing the pastor, Reverend Addison, from disturbing the orderly worship in said church, or interfering with the business meetings of said church; from using force and violence, or threatening to use force and violence against plaintiffs or the members of the church; from assuming or attempting to perform any duties as officers of said church; from assuming physical control of the church premises, or interfering with the peaceable ingress and egress to and from said church by plaintiffs and members thereof; from negotiating any settlement with the St. Louis Land Clearance Authority with respect to the disposition, sale or conveyance of the real estate belonging to said church, or representing said church in the condemnation suit then pending in the Circuit Court of the City of St. Louis, unless under the sanction and authority of the officers of the church.” The defendants appealed from the decree.

The division in the church apparently took place after the St. Louis Land Authority decided to clear all buildings from the area in which the St. Bethel Missionary Baptist Church stood. It was about this time that a difference of opinion occurred among the members relating to the use of the money it was to receive from the Land Clearance Authority for the condemnation of the church property. This resulted in threats and efforts of opposing sides to use the church building. It culminated in each side holding a meeting and going through the form of electing officers. A more detailed statement of facts is set forth in Coates v. Parchman, Mo.App., 334 S.W.2d 417.

Two suits other than the matter before us enter into our consideration of this appeal. The first of these was the action by the Land Clearance Authority. At the time the action was brought Parchman was a duly elected member of the Board of Deacons and was named as a defendant in the suit. The second, as stated, was the suit in which the above injunction was granted after the quarrel among the members about the use of the funds to which the church was entitled under the first suit. This is the quarrel that resulted in dividing the members into two factions, with each faction purporting to elect Deacons and officers of the church.

After the injunction, set out above, was granted, defendants appealed to this court. While the appeal in that case was pending, the plaintiffs who had prevailed below sought to withdraw the full amount of the award in the condemnation suit, the money having been paid into court by the Land Clearance Authority. Parchman intervened, still asserting that he was Chairman of the Board of Trustees of the church. The petition to withdraw the money was denied, and Parchman and his lawyers were cited and held in contempt. This citation went to final judgment, as no appeal from it was ever perfected.

The parties who prevailed in the injunction suit filed another petition on behalf of the church to withdraw $5,000 of the sum on deposit. The lawyers for Parchman were served with notice by the petitioners that the motion had been filed. Again Parchman, through the same attorneys, intervened, this time as a member of the church, and opposed the withdrawal of the $5,000. The petition for withdrawal was granted, and Parchman, by his lawyers Lynch and Witherspoon, filed a motion to set aside the order granting the withdrawal. There followed the citation for contempt which is now before us.

Upon hearing, the trial judge indicated that he considered the defendants in contempt of court in filing their motion to set aside the order for partial distribution. The defendants withdrew the motion that they had filed, and the court ordered them to pay the costs that had accrued in two previous suits amounting to $173.50, plus $33.15 costs in the action here under consideration. They paid the total sum and appealed from the judgment holding them in contempt.

The appeal from the injunction suit was pending in this court at the time that the defendants were cited for contempt for violating the injunction. We have since reversed the judgment of the trial court in that case and have found that neither group was properly elected at the respective meetings held, and that consequently neither group was entitled to injunctive relief. Coates v. Parchman, Mo.App., 334 S.W.2d 417.

No question is raised as to the right of the court to enforce its injunction pending an appeal. The manner of punishment for violation of an injunction is set forth in Rule 92.15, Supreme Court Rules, V.A.M.R. The taking of an appeal from a judgment granting injunctive relief does not stay the operative force of the decree. It follows that since the decree is in effect during the pendency of the appeal, those who violated it are guilty of contempt of the court which entered the decree and may be proceeded against. State ex rel. Busch v. Dillon, 96 Mo. 56, 8 S.W. 781; State ex rel. South Missouri Pine Lumber Co. v. Dearing, 180 Mo. 53, 1. c. 69, 79 S.W. 454; State ex rel. Gray v. Hennings, 194 Mo.App. 545, 185 S.W. 1153; Willow Springs C. Co. v. Mountain Grove C. P. & P. Co., Mo.App., 197 S.W. 916.

The respondents here assert that the defendants acquiesced in the judgment holding them in contempt, and having done so they waived any right to appeal. We do not find that there was any acquiescence. Only after the court threatened them with commitment and placed them in the custody of the sheriff did they pay the costs. A fuller statement of what transpired at the hearing is set forth in State ex rel. Coates v. Parchman, Mo.Sup., 346 S.W.2d 74, 1. c. 76.

The injunction above quoted first restrained the defendants from interfering with the ordinary business of the church. The second part dealt with the condemnation suit and restrained the defendants from negotiating with the Land Clearance Authority or representing the church in the condemnation suit. It is under the second part that they must be held guilty of contempt, if they are guilty. We find that they were not guilty of contempt for they did not negotiate with the Land Clearance Authority or seek to represent the church in the condemnation action.

Of the costs paid, $150.00 accrued in the former citation for contempt. This matter has gone to final judgment against the appellants, so they are not aggrieved by the payment of that which they are obligated to pay. Costs of $23.50 were ordered paid in one of the other cases — it is not clear which one this is — but neither of the foregoing cases is before us, and we make no order respecting the costs paid by appellants in those cases. The costs paid in the Circuit Court in this case amount to $33.15, and this should be retaxed against the relators in the action.

The judgment is reversed, and the case remanded with directions to tax the costs against the relators and refund to the appellants the sum of $33.15.

ANDERSON, P. J., and RUDDY, J., concurs.


text:
    ST. LOUIS REALTY DEVELOPMENT CORPORATION, a Corporation, (Plaintiff) Respondent, v. Maurice J. GORDON, a/k/a M. J. Gordon, (Defendant) Appellant.
    No. 30838.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1962.
    Rehearing Denied March 19, 1962.

      Francis M. O’Brien, St. Louis, for appellant.
    Edward A. Dubinsky, St. Louis, for respondent.
   WOLFE, Judge.

This is an action on a note. On the day of trial defendant defaulted in appearance. After inquiry as to the defendant’s knowledge of the setting, the case was tried upon the evidence presented by the plaintiff. The court entered judgment for the plaintiff and against the defendant for the principal sum due on the note and the interest owing. The defendant thereafter filed a motion to set the judgment aside on the ground that the case was not set for trial in accordance with the rules of the Circuit Court for the Twenty-First Judicial Circuit, in which it was tried. The motion was overruled and the defendant appealed.

The suit was filed in the Circuit Court of the City of St. Louis on January 22, 1958. Upon motion of the defendant for a change of venue, it was transferred to the Circuit Court of St. Louis County, which is a multiple-judge court and constitutes the Twenty-First Judicial Circuit. The court has an Assignment Division in which cases are set and called for trial. From this division they are assigned to trial divisions. After several settings the case was set on October 31, 1960, at which time it was passed to November 2. It was then continued “to be reset”. On November 23, the Judge of the Assignment Division entered an order which reads: “Cause reset for November 28 at 9:30”. On November 28 the case was assigned to Division Three for trial.

When the case arrived in Division Three it was called by the Judge, and the attorney for the plaintiff announced ready. The Judge then remarked that no one was present to represent the defendant. He asked the Chief Clerk for the Assignment Division, who was then present in Division Three, about the absence of the defendant. The Clerk informed the court that on the setting of October 31, Mr. Gordon, the defendant, who is also a lawyer, claimed that he was ill and that the case was passed at that time to Wednesday, November 2. On that date no trial divisions were free to accept the assignment of the case, and the Judge of the Assignment Division announced that the case would be passed to the first open docket in November.

A letter addressed to the Judge of the Assignment Division and dated November 8, was introduced in evidence. It was from Maurice J. Gordon, on the stationery of his law office. In this letter he stated that he had been informed by the Chief Clerk of the Assignment Division that the case in question would be set on the 14th or the 28th of November. He went on to state in the letter that he would prefer a December setting. A carbon copy of a letter mailed by plaintiff’s attorney to Mr. Gordon and to his attorney, Mr. O’Brien, on November 23, was introduced in evidence. The letter informed them that the case was set for November 28, and that the plaintiff would be ready for trial. Plaintiff’s attorney told the court that Mr. O’Brien had telephoned him after the receipt of the letter and told him that he knew of the setting and that he would phone him later “to discuss or negotiate the possibility of exploring disposition”. Later Mr. O’Brien again phoned plaintiff’s counsel, and in neither conversation did he ever say that he would not be ready for trial.

The only point raised by the appellant goes to the meaning and force of Rule 19 adopted by the Circuit Court of St. Louis County, and in effect at the time the case was tried. It is therefore not necessary to set out the evidence heard by the court. No point is raised in relation to it. That portion of the rule which the appellant claims that the court violated is as follows:

“RULE 19. NOTICE OF TRIAL SETTINGS.
“A. APPROXIMATELY six weeks in advance of the date on which civil jury causes are set for trial the docket clerk will mail to the attorneys of record in each cause a double postal card advising said attorneys of the trial date and requesting that they return the reply portion of the postal card promptly with an indication thereon of whether or not they will be ready for trial on the date in question, the name of the trial attorney for each party, the number of days anticipated to try the cause, and whether or not out-of-town witnesses will be used.
“B. The trial calendar for each jury week will be published in ‘The St. Louis Countian’ approximately four weeks in advance of said jury week and will list the causes on said week’s calendar in the order in which they will be called for assignment for trial. In addition, each week’s trial calendar will be published in ‘The St. Louis Countian’ on the Saturday immediately prior to the jury week in question.”

As his first point appellant asserts that under paragraph A of the rule, he was entitled to approximately six weeks’ notice, in advance of the setting of November 28, with a postcard which he could return to indicate whether or not he would be ready for trial.

As his second point he stated that under paragraph B it was necessary to publish the setting of a case four weeks in advance of November 28.

He sets out five other points which may be summarized as stating that court rules should be enforced; that it is the duty of the court to enforce its rules; that the rules have the force of law; that they are for the benefit of the parties as well as the court; and his last point is that they apply to all persons alike.

The appellant makes no mention of Rule 18-B, which is as follows:

“The Assignment Judge on his own motion or by stipulation of counsel with the consent of the Court may place upon the trial calendar any cause at issue, whether listed for trial or not.”

In the construction of the rules of court we consider all of the rules in relation to the subject with which they treat, and we look at them with regard for the purpose for which they were adopted. 21 C.J.S. Courts § 177, p. 282.

The rules were obviously drawn for an orderly disposition of cases on file, reserving the right in the court to set the cases over to a later date if they could not be reached in the week for which docketed for trial. It would be absurd to construe the rules to mean that if a case could not be tried during the week for which it was set, it could not be passed to the following week or later if trial time appeared available at the later date. Such a construction would mean that whenever a docketed case could not be reached for trial at the time set, it would have to be set at least four weeks later. This would of course needlessly impede the court in the disposition of cases awaiting trial. It would therefore be contrary to the purpose of the rule.

There is no contention here that the defendant did not have notice of the setting in sufficient time to prepare for trial. His only contention is that any setting not preceded by a publication of it four weeks in advance is a fatal violation of the rules. The defendant’s letter of November 8 states that he had been informed that the case would be tried on November 14 or November 28. His lawyer knew of the November 28 setting, and at no time informed the court that he could not be ready. There was ample time in which he could have done so, and having failed, the error is his and not the court’s.

That which we have said about the first two points disposes of the others, except for the assertion that the plaintiff was given preferential treatment by the trial court. The record does not support this contention. The Judge of Division Three made extensive inquiry about defendant’s counsel’s knowledge of the setting before he proceeded to try the case. The trial was proper and in conformity with the rules of court.

The judgment is affirmed.

RUDDY, Acting P. J., and SAM C. BLAIR, Special Judge, concur.

ANDERSON, P. J., not participating.