text:
    Kenneth J. MADDOCK, Appellant, v. Robert F. LEWIS, Louis E. Burger, Fred Helfrich, Rudolph Wolf, Edward Goedoeker, Nick Wild and Henry Tobias, Individually and as Officers of the Brewers and Maltsters, Local Union No. 6, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and as Representatives of the Class Consisting of Members of Brewers and Maltsters Local Union No. 6, IBTCWHA, and Anheuser-Busch, Inc., a Missouri Corporation, Respondents.
    No. 50569.
    Supreme Court of Missouri, Division No. 1.
    Jan. 11, 1965.
    Opinion Modified on Court’s Own Motion Feb. 8, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 8, 1965.

      Charles M. Tureen, Blumenfeld, Kalish-man & Tureen, St. Louis, for appellant.
    John S. Marsalek, Joseph H. Mueller, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent An-heuser-Busch, Inc.
    Harry H. Craig, St. Louis, for defendants-respondents other than Anheuser-Busch, Inc., Wiley, Craig, Armbruster & Wilburn, St. Louis, of counsel.
   HIGGINS, Commissioner.

Action to recover $574,380 actual and punitive damages for alleged wrongful discharge and breach of a collective bargaining agreement. The amount in controversy exceeds the sum of $15,000 and this court has jurisdiction. Art. V, § 3, 1945 Missouri Constitution, V.A.M.S.; § 477.040 V.A.M.S.

Appellant, Kenneth J. Maddock, was employed by respondent Anheuser-Busch, Inc., in June 1950, for work in a job classification of “other men in the brewing department.” His employment was not continuous, and he was recalled from time to time until May 12, 1958, when he was dismissed.

Brewers and Maltsters Local Union No. 6, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America, was the exclusive bargaining agent for employees in appellant’s classification under a collective bargaining agreement between Local No. ■6 and Anheuser-Busch, Inc. Appellant was not a member of Local No. 6, his application to become a member being consistently denied. Notwithstanding such lack of union membership, the agreement bound him and inured to his benefit.

Local No. 6 is a voluntary unincorporated labor organization and is a union as defined by Section 2(5) of the Labor Management Relations Act of 1947. The named respondents, Robert F. Lewis, et al., are sued individually and as officers of Local No. 6 constituting the executive board, and as representatives of the class consisting of members of Local No. 6. Among their duties is the investigation of grievances and the representation of employees in grievance procedures.

Anheuser-Busch is engaged in a business affecting interstate commerce within the meaning of the Labor Management Relations Act of 1947 and is subject to the provisions of that act.

Appellant was called from layoff to work by Anheuser-Busch May 12, 1958. He reported to work and was discharged almost immediately because, according to the service letter given appellant, “all the other men employed in the lager cellars either ceased work or refused to start work and refused to return to work or start work if Mr. Maddock was assigned to work in this department with them.” On May 14, 1958, appellant mailed three letters to Local No. 6 advising of his grievance on account of his discharge and requesting his grievance be processed. Two of his letters were returned unopened and marked “refused,” and the third was returned in an envelope bearing the return address of Local No. 6. Contact between Local No. 6 and appellant was limited to a telephone call initiated by appellant to respondent Lewis, Chief Officer of Local No. 6, in which appellant was advised that Lewis had investigated the matter and found that the discharge was justified.

On May 12, 1958, appellant filed unfair labor practice charges against Anheuser-Busch and Local No. 6 under the Labor Management Relations Act of 1947. Upon administrative investigation of these charges, the Labor Board refused to issue a complaint because of insufficient evidence, and appellant sought no review of this action.

Appellant’s petition, filed June 2, 1960, and amended November 1, 1963, is in three counts. Appellant describes Count I as a class action against Local No. 6 and respondent officers individually for alleged breach of duty to fairly and honestly represent plaintiff in his grievance against An-heuser-Busch arising out of his discharge by Anheuser-Busch; and Count II as against Anheuser-Busch for alleged wrongful discharge contrary to the terms of the collective bargaining agreement. Count III is against all defendants alleging conspiracy to do the acts alleged in Counts I and II.

Answers denied the substantive allegations of the petition and set up affirmative defenses. On September 19, 1960, respondents other than Anheuser-Busch filed Motion for Summary Judgment supported by affidavit of respondent Robert F. Lewis, and on November 30, 1960, respondent Anheuser-Busch filed Motion for Summary Judgment supported by affidavits of William F. Guffey and Owen Rush. These motions suggested the absence of any genuine issue as to any material fact and that the movants were entitled to judgment as a matter of law. On February 1, 1961, appellant filed counteraffidavit in opposition to the motion of defendants other than An-heuser-Busch. The motions were submitted to the court on briefs and on the pleadings, affidavits, counteraffidavits and depositions on file. On October 9, 1963, the court filed a memorandum opinion in which, among other things, it was determined that there was no fact issue for a jury and the motions were sustained. The judgment was set aside on November 1, 1963, to permit plaintiff to file his amended petition, after which all matters were resubmitted. The trial court again sustained the Motions for Summary Judgment and entered the judgment in favor of all defendants from which this appeal is taken.

The substance of appellant’s contentions on this appeal is that summary judgment was not appropriate because, in the language of the rule, defendants have not shown “by unassailable proof to he entitled thereto as a matter of law.” Supreme Court Rule 74.04, V.A.M.R.

Under Rule 74.04(a) the party moving for summary judgment may file and serve supporting affidavits as respondents-have done here. Under Rule 74.04(c) the adverse party (appellant here) may serve-opposing affidavits and all affidavits are-then considered along with the pleadings,, depositions, and admissions on file, to determine if any genuine issue of fact remains. Reis v. Metropolitan St. Louis Sewer Dist., Mo., 373 S.W.2d 22, 27 [6]. A summary-judgment is a determination as a matter of law that there is no issue of fact to be-tried, Swink v. Swink, Mo., 367 S.W.2d. 575, 578 [3]; and “In no case shall a summary judgment be rendered on issue triableby jury * * * unless the prevailing party is shown by unassailable proof to be-entitled thereto as a matter of law.” Rule-74.04(h).

We have recognized that Rule 74.04 is-practically identical to Rule 56 of the Federal Rules of Civil Procedure, and we have found federal decisions construing Rule 56-to be persuasive in applying our Missouri Rule. Cooper v. Finke, Mo., 376 S.W.2d 225, 228 [1], We have held: “The appellate court as well as the trial court must, view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered.” Cooper v. Finke, supra, 1. c. 228 [2]. “As its name indicates, a summary judgment is an extreme and drastic remedy and great care-should bev exercised in utilizing the procedure. Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213, 216 [6] * * *.. Although it is useful and beneficial in many situations, it cannot be substituted for a conventional trial of factual issues, 'unless the prevailing party is shown by unassailable, proof to be entitled thereto as a. matter of law.’ ” Cooper v. Finke, supra, 1. c. 229 [3, 4]. In Armco Steel Corp. v. Realty Investment Co., 8 Cir., 273 F.2d 483, the court said, 1. c. 484 [1-4] : “A genuine issue of fact exists for the purpose of avoiding a summary judgment whenever 'there is the slightest doubt as to the facts (citing cases). As we have heretofore explained, summary judgment is a harsh remedy and, ‘ * * * should never be entered except where the defendant is entitled to its allowance beyond all doubt; •only where the conceded facts show defendant’s right with such clarity as to have no room for controversy; with all reasonable •doubts touching the existence of a genuine issue as to a material fact resolved against the movant; giving the benefit of all reasonable inferences that may reasonably be •drawn from the evidence to the party moved against. “That one reasonably may surmise that the plaintiff is unlikely to prevail upon a trial, is not a sufficient basis for refusing him his day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would •obviously be futile to try' them.” ’ ”

With these principles in mind, we ■proceed to determine if there is a genuine issue of fact in this case. Assuming that the petition is sufficient to withstand a motion to dismiss within the meaning of Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483, Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370, Regan v. Ohio Barge Line, Inc., D.C., 227 F.Supp. 1013, and cases there and other~wise cited by appellant, we must nevertheless determine whether this case as presented to the trial court on the Motions for Summary Judgment was ripe for entry of summary judgment against appellant.

We direct our attention initially to the complaint of wrongful discharge against the employer, respondent Anheuser-Busch. The pertinent allegations as against An-heuser-Busch are, from Count II, “that on May 12, 1958, defendant (Anheuser-Busch) did wrongfully and without cause or reason as set forth in Article IV of said CBA (collective bargaining agreement), and contrary to * * * said CBA, discharge plaintiff from his employment.” In Count III appellant alleges “that * * * defendants (all of them) * * * did conspire together and with others and agree to deprive plaintiff of his rights and privileges under * * * said CBA; * * * that in furtherance of and pursuant to said conspiracy, defendant Company did, on May 12, 1958, discharge plaintiff * *

We have held that “Unless there is a contract pertaining to the duration of the employment or limiting the reasons for which the employee may be discharged the employment is at the will of either party, and the employer may terminate the relationship at any time (citing cases). Therefore a contract of employment and a breach thereof is a prerequisite to a cause of action for wrongful discharge (citing cases). A petition for wrongful discharge from employment in breach of contract must set forth the essential elements of a valid contract, and a discharge in violation thereof (citing cases).” Williams v. Kansas City Public Service Co., Mo., 294 S.W.2d 36, 38 [2-4]. See also Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 124 [1]; Quinn v. Buchanan, Mo., 298 S.W.2d 413, 418 [10-12].

Nowhere has appellant set out a contract or any term of employment, and the matters presented to the trial court show that he had no term of employment. He has alleged only that “plaintiff’s employment was for a term in accordance with said CBA * * It can be assumed that his employment is generally subject to that agreement, but appellant does not allege where in that agreement any provision is made for a term of employment and our search of the agreement which was filed as an exhibit to the petition reveals no provision for a term of employment for appellant. The affidavit of Robert F. Lewis states: “3. Kenneth J. Maddock is an individual who was employed * * from time to time between June 13th, 1950, and May 12th, 1958. His employment was not steady or continuous between said dates because the business of Anheuser-Busch, Inc. is seasonal in nature and the company has always reduced its working force in the winter months. Mr. Maddock was laid off from time to time in the slack business periods. 4. * * * The arrangements for employment did not include any understanding or agreement that he would be employed for any specific period of time.” In his counteraffidavit appellant states: “1. That from June 14, 1950, to and including May 12, 1958, I was in the continuous employment of Anheuser-Busch, Inc. During such period of time I was employed under the job classification as ‘other men in the brewing department.’ From time to time during such period I was laid off when the company reduced its working force because of the seasonal nature of said company’s business.” It is obvious from the Lewis affidavit that lack of a contract for a term or duration of employment is set up against appellant. It is equally obvious that appellant fails to state any such term in his counteraffidavit or to otherwise set forth specific facts to show this to be an issue for trial (Rule 74.04(e)), and his petition charges only that he was discharged without cause as set forth in Article IV of the agreement.

Under both Missouri and federal law a collective bargaining agreement is not a contract of hire and “After the collective trade agreement is made, the individuals who shall benefit by it are identified by individual hirings. The employer, except as restricted by the collective agreement itself * * * is free to select those he will employ or discharge. But the terms of the employment already have been traded out.” Donahoo v. Thompson, Mo., 291 S. W.2d 70, 73 [3-6]; J. I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 334, 64 S.Ct. 576, 88 L.Ed. 762.

Under the law and in this state of the case we conclude that appellant’s employment was not for a term but, rather, was indefinite, leaving appellant subject to discharge at will unless the collective bargaining agreement made it otherwise. Portions of the collective bargaining agreement pertinent to this determination follow:

“ARTICLE III
“MANNER OF EMPLOYMENT
“Section 1. The right to hire and discharge by the Employer, subjected to the provisions of this agreement, is hereby acknowledged.
“ARTICLE IV
“DISCHARGE
“Employer may discharge for dishonesty, willful neglect or refusal to perform duties or for violation of the provisions of this agreement.
“ARTICLE V
“CAUSES NOT SUFFICIENT FOR DISCHARGE
“Section 1. No employee shall be discharged for absence occasioned by temporary sickness or disability unless such sickness or disability incapacitates him from performing his duties.
“Section 2. No man shall be discharged for doing committee work for the Union, provided he shall give notice of the length of time such committee work will require. Such committee work shall be done on the employee’s own time.
“Section 3. There shall be no discrimination by Employer or foremen against any member for his union activities.
“Section 4. It is agreed that it shall not constitute a breach of this agreement for any employee or Union member covered hereby to refuse to cross a picket line or to refuse to enter upon the premises of the Employer if such refusal does not constitute a violation of Sub-Section 303(a) of the Taft-Hartley Act * *

Article III of the agreement recognizes the general right of the employer to hire and discharge. If this were not so, it would be a vain and useless thing to have this provision and, if possible, we should accord meaning to every provision of the agreement. The agreement subjects this right to other provisions of the agreement and to that extent the general right is modified. The agreement in Article IV provides certain situations in which discharges may occur, but they are not exclusive of other grounds, nor do they preclude the right to discharge at will where no term of employment is involved and such discharge is not otherwise in violation of the agreement. To hold otherwise would be to nullify the right of discharge recognized in Article III, and would rule out the right of an employer to discharge for such reasons as cessation of business, discontinuance of job, disloyalty to the government or employer, trouble making, fighting, and gambling, to name only a few. There is no imposition of “reasonable” or “just or sufficient cause” as a condition of dismissal, as mentioned in Pacific Press, Inc., 26 Labor Arbitration 339, and as was the case in Tinnon v. Missouri Pacific R.R. Co., 8 Cir., 282 F.2d 773, 777 [3], Specific limitations on the general right of the employer to discharge under Article III are imposed by Article V. It is significant that plaintiff does not claim a violation or breach of any of the provisions of Article V because such would be patently wrongful and would place a duty of investigation and representation on the union. As it is, the end result is that appellant charges only that he was wrongfully discharged. He argues that the seniority provisions of Article XXII, Section 7(b), to the effect that seniority is lost by discharge in accordance with the terms of this contract, show the exclusive nature of the discharge provisions of the agreement. We do not consider this argument sound because it is clear that such provision is nothing more than a provision for loss of seniority on that ground and that nothing about it precludes loss of seniority for other reasons, including the loss of seniority upon discharge at will. A situation somewhat analogous to this case was before the court in Fraser v. Magic Chef-Food Giant Markets, Inc., 6 Cir., 324 F.2d 853. The court held that closing a plant and terminating employment was not a breach of the collective bargaining agreement, even though the agreement made no provisions in case of shutdown, and that employees could not recover wages they would have received if the employer had continued to operate throughout the duration of the agreement. Of importance here is the construction placed on the management rights clause in the collective bargaining agreement. The court said, 1. c. 856 [3], “ ‘While it is true that a management rights clause cannot be used to destroy rights granted by other provisions, it is also true that the clause is never intended as a comprehensive enumeration of the rights of management whose effect is to forfeit by silence any rights not expressly reserved. This would place an intolerable burden upon the draftsman of the agreement. Its operation is the reverse of that proposition.’ There is no merit to the argument of the appellant that because the Company was not given the express right to discontinue operations in this clause of the contract the right did not exist.”

We conclude that as a matter of law, appellant had no contract providing for a term or duration of employment to support a case of wrongful discharge, and he alleged no breach of the causes not sufficient for discharge contained in Article V of the collective bargaining agreement. Thus, as presented to the trial court, there was no fact issue as to these matters, and it was proper for the trial court to sustain the Motion for Summary Judgment of the employer, respondent Anheuser-Busch, Inc.

Turning to the complaint against the remaining defendants, which is one of failure to process, in good faith, a grievance on account of wrongful discharge, we recognize that a duty of fair representation is imposed upon unions acting as bargaining agents. Humphrey v. Moore, supra. In this case, however, we have determined that the discharge of plaintiff by respondent Anheuser-Busch was not wrongful or alleged to be in violation of any provision for causes not sufficient for discharge in the collective bargaining agreement. As a consequence, the remaining defendants cannot be liable for any alleged failure to process a grievance in connection with a discharge that the employer had the right to accomplish. In other words, the circumstances presented to the trial court showed as a matter of law that such defendants had no duty to perform and their entry into an investigation in behalf of plaintiff does not change the case. Thus, there was also no issue of facts to be determined between appellant and these respondents, and summary judgment was likewise properly entered in favor of respondents other than Anheuser-Busch. This is true also of the conspiracy alleged in Count III because it is based on the assumption that appellant’s discharge was wrongful. As we have pointed out, the discharge was not wrongful and the charge of conspiracy to do a wrongful act fails. Friedman Textile Co. v. Northland Shopping Center, Mo.App., 321 S.W.2d 9, 17 [7, 8]; Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678, 688 [3].

Issues concerned with the jurisdiction of the National Labor Relations Board and exhaustion of remedies have been briefed by the parties. Such issues are not germane and it is unnecessary to consider them because what has been said is dispositive of this appeal.

We find no facts here which give rise to a genuine issue, and the proof before the trial court was therefore “unassailable.”

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

HYDE, P. J., and HOLMAN and HENLEY, JJ., concur.

DALTON, J., absent


source: Caselaw Access Project

author: HENLEY, Judge. PER CURIAM.

license: Public Domain

text:
    SAM SNEAD SCHOOL OF GOLF, Respondent-Plaintiff, v. ANCHOR CASUALTY COMPANY, Appellant-Defendant.
    No. 50521.
    Supreme Court of Missouri, Division No. 1.
    Jan. 11, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 8, 1965.

      Donald W. Johnson, Arthur C. Popham,. Sr., Kansas City, Popham, Thompson, Pop-ham, Trusty & Conway, Kansas City, of counsel, for respondent.
    Glenn E. McCann, William R. Fish,. Lowell L. Knipmeyer, Kansas City, Knip-meyer, McCann & Millett, Kansas City, of counsel, for appellant.
   HENLEY, Judge.

This is an action on a Business Interruption Insurance Policy praying for damages-of $37,750 allegedly suffered by plaintiff as-a result of the interruption of its business-caused by fire. Plaintiff also prays for damages of $3,775 as penalty and $7,500 as-attorney fees for alleged vexatious refusal by defendant to pay. The case was tried before a jury on plaintiff’s second amended petition, and defendant’s general denial and an affirmative defense that after the alleged loss plaintiff breached the provisions of the policy (1) by falsely and fraudulently swearing to material facts and circumstances in a proof of loss delivered to defendant and (2) by subsequently falsely and fraudulently swearing to material facts and circumstances pertaining to its alleged loss on oral examination of its president. Trial resulted in a verdict for the defendant. Plaintiff’s motion for new trial was sustained and defendant appeals. This court has jurisdiction, the amount in dispute exclusive of costs exceeding $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.

At the outset we are met with and will rule upon motions of the respective parties filed in this court subsequent to argument and submission of the case here. On submission date, September 25, 1964, defendant asked and was granted leave to file and filed a reply brief. On October 15 plaintiff filed a printed motion that the court set aside its order granting defendant leave to file a reply brief and to strike that brief from the record. Plaintiff’s motion to strike complains of alleged new matter and points raised in defendant’s reply brief and then proceeds to brief and answer those points. Defendant then filed a motion to strike the so-called brief of plaintiff contained- within its mentioned motion. The result reached in this opinion will indicate that it was not necessary that we treat with the points and counterpoints made in the briefs objected to, or the other points made in appellant’s brief and respondent’s answer brief, the one controlling point on which the case is decided being briefed only in defendant-appellant’s initial brief and plaintiff-respondent’s answer brief. The respective motions to strike are, however, for the record, overruled.

The trial court’s order sustaining plaintiff’s motion for new trial was:

“1. This Court committed error under all of the facts in this case in refusing Instruction Number 4 offered by the plaintiff.
“2. This Court committed error in giving Instruction Number 5, given at the request of the Defendant.
“3. This Court committed error in giving Instruction Number 16. This instruction was offered and given on behalf of the defendant.”

Being disposed, as the reviewing court should be, to uphold the order of the trial court granting a new trial where the order involves the exercise of judicial discretion, we look first to the court’s action sustaining the motion for its assigned ground that it had erred in refusing to give Instruction No. 4. Resolution of this point will only rightly exclude consideration of the other points raised.

The business of plaintiff was begun in Kansas City, Missouri, in January, 1959, by James O. R'iccardi, as sole proprietor. A franchise was purchased to operate under the name of a famous golf professional and in May, 1959, the business was incorporated and known as Sam Snead School of Golf, Inc., Riccardi being its president. Plaintiff’s business was selling golf lessons to those desiring to learn and those knowing but desiring to improve their golf games through instructors employed by plaintiff. In connection with selling golf lessons it also sold at retail the golfer’s usual equipment from its sporting goods shop. The business was located in a large frame building containing six or seven thousand square feet which had been adapted by plaintiff to its uses as a retail sporting goods shop and for indoor instruction of its customers.

On October 13, 1959, plaintiff purchased from defendant an insurance policy insuring it against the actual loss sustained by it resulting from the interruption of its business caused by the damage or destruction by fire of the building wherein its business was located. On October 28 an explosion and fire occurred destroying this building and interrupting plaintiff’s business. In early February, 1960, plaintiff submitted its proof of loss to defendant, sworn to by its president. Later plaintiff’s president submitted to oral examination under oath. In April the defendant by letter delivered to plaintiff’s attorney returned the proof of loss stating: “* * * We are denying this claim as presented due to the fact that it does not appear from the insured’s presentation of loss that it properly reflects the loss incurred.” No further proof of loss was submitted by plaintiff and so far as we have been able to determine from the record there was no further communication between the parties after this letter until suit was filed.

In support of the trial court’s action in granting it a new trial for its alleged error in refusing to give Instruction No. 4, plaintiff contends and argues that the testimony of John O. Winfrey, Chief Inspector of the Kansas City Fire Prevention Bureau, left the implication with the jury that this fire was the result of arson; that “the charge of arson is so conducive of prejudice that, under the circumstances of this record, a limiting or cautionary instruction was entirely proper, and should have been given”; and, that the court was properly exercising its discretion in sustaining the motion for new trial for its failure to give Instruction No. 4. The refused instruction is:

“Statements in the trial to the effect that the circumstances of said fire appeared suspicious or that some sort of liquid was later found there, and any intimations, if any were made or intended, that arson might have occurred, are not issues in this case.”

After this witness had testified that his duties, and those of other officers with him the next morning at the scene of this fire, included investigation of suspected arson fires and that they had found a liquid there smelling of gasoline and evidence of an explosion plaintiff objected to such testimony. Its objection was that defendant had not pleaded arson as a defense. This objection came as defendant was examining the witness with reference to photographs of the scene of the fire depicting evidence of an explosion from within the building. The court sustained the objection stating “You can show the pictures to the jury to show the condition, but I am ruling out all testimony as to this man’s conclusions as to the cause of the fire.” After having announced that it had no objection to the introduction in evidence of the photographs plaintiff at the close of a brief examination of the witness, moved to strike “all of the testimony of this witness as to them smelling something there, * * *, and all of his testimony except the explanation of the pictures,” for the reason that suspicion of arson was not and could not be an issue in this case because defendant had denied liability on another exclusive ground. The court overruled the motion to strike stating “I don’t think any instructions would remove this testimony from the minds of the jury and I am going to overrule you, but I will take care of it — you have no defense of arson that I am going to instruct on.” Nowhere in his testimony does the witness state a conclusion, or an opinion, as to the cause of the fire. Even so, the jury could have believed that this witness meant to imply not only that the fire was suspected as having been caused by arson but that it was in fact caused by an explosion produced by arson.

Defendant took the position at the trial, and does so in this court, that because of the issue of vexatious delay introduced by plaintiff this testimony was proper as proof that it had not acted vexatiously in denying the claim but had acted as a reasonable and prudent man would act in the light of the knowledge it had from the investigation of the fire. Plaintiff, in its brief, “frankly concedes that, because of the issue of vexatious delay, it was proper for defendant to prove that an investigation for arson was made.”

Whether to give or refuse Instruction No. 4 was within the sound discretion of the trial court. Nelson v. O’Leary, Mo., 291 S.W.2d 142, 143, 148 [10]; Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663 [4] ; Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Songer v. Brittain, Mo.App., 272 S. W.2d 16. In refusing to give the instruction to the jury the court exercised its discretion. The court’s order granting plaintiff a new trial recited “this Court committed error under all of the facts in this case in refusing Instruction No. 4 offered by the plaintiff”, saying, in effect, that the court should have, in the exercise of its discretion, given this instruction. That part of the order pertaining to Instruction No. 4 only is tantamount to saying the court abused its discretion in refusing to give this instruction. Appellate courts are more liberal in upholding an order granting a new trial than in reversing and remanding a cause especially where, as here, the order involves the exercise of judicial discretion by the trial court, and this rule is so well settled it is unnecessary this opinion be burdened with citation of authorities in its support. This rule has been applied .when the error was in the refusal of the trial court to give cautionary instructions. 5A C.J.S. Appeal and Error 1623, pages 150 — 151; Hunton v. California Portland Cement Co., 50 Cal.App.2d 684, 689, 123 P. 2d 947; Oklahoma City v. Tarkington, 178 Okl. 430, 63 P.2d 689. Also see: Morris v. E. I. DuPont De Nemours & Co., 351 Mo. 479, 173 S.W.2d 39, 42-43 [2-8]. The trial judge had the witnesses and jurors before him, heard the arguments of counsel and observed the whole atmosphere and conduct of the trial and is in the best position after trial, to look back thereon and determine whether the effect of Chief Winfrey’s testimony was an implication that the fire was a result of arson, whether the jury suspected arson from such possible implication and was influenced thereby to plaintiff’s prejudice, and whether by giving Instruction No. 4 the implication would probably have been removed. We do not find, nor have we been shown, wherein the court has clearly abused its discretion in granting a new trial. Accordingly, we defer to that court’s ruling and its action will be affirmed.

The order of the trial court is affirmed and the cause is remanded for a new trial.

HYDE, P. J., and HOLMAN, J., concur.

DALTON, J., absent.

ON MOTION FOR REHEARING OR, IN THE ALTERNATIVE, TO TRANSFER TO THE SUPREME COURT EN BANC

PER CURIAM.

In its motion for rehearing or, in the alternative, to transfer to the court, en banc, the defendant makes the points that the court failed to follow, and that the opinion is in conflict with, controlling decisions of this court holding (1) that whether to give requested instruction No. 4 was within the sound discretion of the trial court, consequently the trial court committed no error in refusing to give the instruction, and therefore could not later grant a new trial for its refusal, (2) whether the court erred in refusing to give the instruction was purely a matter of law, and, (3) “ * * * the question [being] one of pure law, the court had no discretion with which to act since a trial court’s discretion in granting a new trial extends only to questions of fact.”

Defendant agrees that this instruction, referred to in the opinion, is purely a cautionary instruction, and that the giving or refusal of such an instruction rests solely within the sound discretion of the trial court. Having adopted this statement as its foundation defendant proceeds to develop and advance the theory that since the court did not err in refusing to give the instruction it could not later grant a new trial for such refusal because its act of refusing the instruction was directed to determination of a question of law; that since the question of whether the court erred in refusing the instruction “was one of pure law, the court had no discretion with which to act since a trial court’s discretion in granting a new trial extends only to questions of fact.” Defendant takes an anomalous position, and words in Schipper v. Brashear Truck Co., Mo., 132 S.W.2d 993, 125 A.L.R. 674, have, because taken out of context by defendant, led it astray to its illogical conclusions. In Schipper the trial court refused to give instructions stating abstract principles of law and containing mistakes in the use of the word “plaintiff” where the word “deceased” should have been used, and then granted a new trial because it had refused to give those instructions. Restating principles announced in many cases that the court should not give instructions containing mere abstract statements of law and adding that the court was under no duty to correct, amend or modify an offered incorrect instruction, the court held the instructions were properly refused and the determination to refuse in the form offered was purely a matter of law; that since no error was committed in refusing the instructions in the form submitted, the order granting a new trial therefor was wholly insufficient as a matter of law. Applying itself to and touching upon the mistakes in the use of certain words in the instructions offered in Schipper, supra, 132 S.W .2d 1. c. 997, this court said, “At the time these instructions were offered the trial court did not elect to exercise its discretion and right to correct or amend said instructions and give them in a correct form.” At this point the court was simply stating the trial court had the right, and that it would be within its discretion, whether to correct or amend the instructions so that they would be in proper form, and then give them as corrected; not that whether the court should have given the instructions was discretionary, for the court held, in the same paragraph, that whether the court erred in refusing the instructions in the form offered was purely a matter of law. Quoting a part of Loftus v. Metropolitan Street Railway Co., 220 Mo. 470, 119 S.W. 942, the court said in Schipper, supra, 132 S.W. 2d 1. c. 997, ‘When the judicial act is directed solely to a question of law, and the act is erroneous, it does not fall within the rule of the exercise of sound judicial discretion. There is no discretion as to the law of a case. * * * So that, when we speak of the granting of a new trial being within the sound discretion of the trial judge, we have no reference to a case where the new trial is granted solely upon the ground that the law has been erroneously given, when in fact it has been properly given.’ Where the grounds assigned for granting a new trial rests’ solely on an erroneous view of the law, and not upon the exercise of judicial discretion, such action is reviewable on appeal.” (Emphasis ours.) To the same effect are other cases cited by defendant.

In determining whether or not to give or refuse instruction No. 4, the court, in the first instance, was not directing itself to the determination of a question of law, but was merely exercising its judicial discretion. No question of law was then presented; the only question being one of fact, and matters affecting the determination of issues of fact; that is, the facts testified to by Chief Winfrey, the inferences of arson that might be drawn therefrom and their possible effect on the jury. In the first instance the court considered the instruction unnecessary and refused to give it. On presentation of plaintiff’s motion for new trial the court had an opportunity to reflect and reconsider its omission and it then, within its discretion, reached a different conclusion. Apparently the court concluded that, in view of the facts testified to by Chief Winfrey, there was an implication of arson that had probably influenced the jury to plaintiff’s prejudice which this cautionary instruction would likely have removed, and that it had abused its discretion and, therefore, erred in refusing the instruction. Consequently, we say, the discretion exercised by the court in granting a new trial rested solely on the facts and matters affecting the determination of facts; not on an erroneous determination of the law. De Maire v. Thompson, 359 Mo. 457, 222 S.W.2d 93. Also see: Loftus v. Metropolitan Street Railway Co., supra, 119 S.W. l. c. 944—945, cited by defendant, and Rodan v. St. Louis Transit Co., 207 Mo. 392, 105 S.W. 1061. and Seeger v. St. Louis Silver Co., 193 Mo. 400, 91 S.W. 1030, therein referred to.

Other points raised in the motion constitute a representation or reargument of issues presented under Point I of Defendant’s Brief which we now disregard except to say the points were considered in reaching the decision, and were determined in the opinion.

For the reasons stated the motion for rehearing or to transfer is overruled.


author: STORCKMAN, Presiding Judge.

text:
    Robert C. WHITE, Appellant, v. Raymond BURKEYBILE, Hershell Haworth, Jr., and Ulyan A. Martin, Respondents.
    No. 50515.
    Supreme Court of Missouri. Division No. 2.
    Feb. 8, 1965.

      Farrington & Curtis, E. C. Curtis, Thomas Strong, Springfield, for respondent Raymond Burkeybile.
    James H. Keet, Jr., and Horace S. Ha-seltine, Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for appellant.
   STORCKMAN, Presiding Judge.

This is an action to recover damages in the sum of $100,000 for personal injuries sustained by the plaintiff when a truck driven by the defendant Burkeybile backed onto plaintiff’s legs while plaintiff was undertaking to repair a tire chain on the right rear wheel of a Volkswagen automobile bus in which he was a passenger and which was owned by the defendant Haworth and was being operated by the defendant Martin. -At the close of plaintiff’s evidence, the trial court directed a verdict in favor of all three defendants. The plaintiff’s motion for a new trial was overruled and he appealed.

After the transcript of the record on appeal was filed in this court, the defendants Haworth and Martin paid the plaintiff $2500 and plaintiff executed a covenant not to sue. Thereupon, the plaintiff dismissed his appeal as to these defendants leaving it pending as to the defendant Burkeybile only. This court has jurisdiction of the appeal because the amount remaining in dispute exclusive of court costs exceeds the sum of $15,000

On this appeal the plaintiff contends that he made a submissible case on primary negligence, that he was not guilty of contributory negligence as a matter of law and, in any event, he made a submissible case under the humanitarian doctrine. He also contends that the court erred in excluding certain parts of defendant Burkeybile’s deposition offered in evidence as admissions against interest. In addition to countering the plaintiff’s contentions, the defendant Burkeybile asserts that the trial court erred in failing to quash the service of summons as to him because of improper venue. In determining the sufficiency of the evidence to support a submission, the reviewing court must consider as true the evidence favorable to the plaintiff’s case together with all favorable inferences that can reasonably be drawn therefrom, and evidence to the contrary must be disregarded. We will confine our statement of the facts to the evidence essential to a determination of the questions presented. For convenient reference, we will generally refer to the defendants in the trial court by their surnames.

The plaintiff, aged forty-one, was a musician and professional entertainer residing in Springfield, Missouri. Haworth, also a resident of Greene County, owned a Volkswagen automobile equipped with a bus body, which was used to transport entertainers to and from out-of-town engagements. For this service he was paid by the booking agency on a mileage basis. The entertainers paid no part of the transportation expenses. On March 15, 1960, a troupe consisting of the plaintiff, Haworth, Martin, and L. D. Keller, were transported in the bus from Springfield to Oskaloosa, Iowa, to fill an engagement. The evening show was completed about 10 p. m. and shortly thereafter the four began the return trip on U. S. Highway 65.

Haworth was driving his bus when they left Oskaloosa but sometime thereafter, probably at Indianola, Iowa, Martin took over the operation and control of the bus with Haworth’s permission and continued to drive during the time in question. Snow was falling in Iowa and it became heavier as the troupe proceeded south in Missouri. Also a wind was blowing causing snow drifts to form on the highway. At Princeton, Missouri, tire chains were put on the bus by a service station attendant. Before the group reached Trenton, links of the chain on the right rear wheel became loose and were striking the underside of the fender or body of the bus, but there was no place open along the highway where it could be repaired until in the vicinity of Trenton members of the group observed the lights of a maintenance building of the Missouri Highway Department. Martin drove onto the parking area and stopped near one of the buildings. At that time the plaintiff was riding in the right front seat next to Martin the driver. Haworth and Keller were reclining on seats or benches in the back portion of the bus; they were apparently asleep as they had taken no part in the discussion between Martin and the plaintiff regarding the loose chain. It was about 5 a. m. and various highway maintenance vehicles and equipment were parked around the building. The lock on the door of the bus on the driver’s side was broken and could not be opened. The plaintiff got out on the right side, went into the building and obtained a piece of wire from one of four or five men in work clothes who were standing around a stove. The plaintiff then went back to the bus, obtained a flashlight from Martin who had remained in the bus, and told Martin to see that the emergency brake was on since he was going to wire the links of the chain back in place. The plaintiff then went behind the bus, crawled partially under it at the right rear wheel with the lower part of his body from the waist down extending beyond the right side of the bus. While he was in this position undertaking to repair the chain, the defendant Burkeybile, an employee of the highway department, entered a maintenance truck parked nearby and backed it in such a manner that its left rear wheels equipped with heavy duty chains rolled upon plaintiff’s feet and legs injuring him' severely. The medical evidence relating to plaintiff’s injuries was omitted from the transcript since it has no bearing on the issues presented.

From the testimony and a plat and photographs in evidence, it appears that the maintenance depot is on the south side of U. S. 65 (Trenton business route) which runs generally east and west at this point. There were two buildings, gasoline pumps, and cinder and chat piles on the area which is paved with asphalt. The building with which we are chiefly concerned is one-storied, of brick construction and sometimes referred to as the garage. According to the plat in evidence, it is approximately 40 feet wide east and west and 80 feet long north and south. The east side of this building is about 50 feet west of the west side of the entrance from the highway to the area. On this east side there are four overhead doors, each about 12 feet wide, obviously intended to admit heavy equipment. In the upper half of these doors, there are two rows of panes consisting of eight panels each. On the north side of the building near the northeast corner, there is an ordinary-sized door which furnishes access for persons entering the building. There is evidence that the snowfall had stopped entirely; if it was snowing at all, it was very light, or the wind may have been stirring up some flakes from the ground. The parking area was covered with snow but it was not deep and was pretty-well packed or had been “bladed off”.

The defendant Martin was a resident of Nebraska at the time of trial and his deposition was read by the plaintiff. This and other evidence offered by the plaintiff tended to prove that when Martin drove onto the lot several pieces of highway maintenance equipment were parked on the east side of the garage building. The truck which injured the plaintiff was the most northern vehicle. It was parked headed west about a foot north of the northernmost overhead door and about four feet east of the building. No part of the truck was in front of the door. The tail and parking lights of the truck were on and the motor was running. A motor grader headed west was parked with at least a portion of it south of the north door. The grader was considerably longer than the truck. Martin stopped the bus about two feet behind the grader headed west so as not to block the pathway to the overhead door. The right side of the bus was about a foot north of the north side of the grader and about seven feet south of a prolongation of the south side of the Burkeybile truck. Martin had his head and taillights on and the motor running when the plaintiff went into the building to get the wire. The top of the bus was dark green and the lower part was light green. When the plaintiff came out of the building, he could see the lights on the bus. When the plaintiff went into the building, he passed within four or five feet of the left side of the Burkeybile truck and within about a foot and a half of the front end.

Shortly after plaintiff got the flashlight from Martin and went to fix the chain, Martin saw Burkeybile at the left front corner of the truck; he appeared to be coming from the building. Burkeybile went to the left side of his truck, got into the driver’s seat, backed it east for a short distance, then turned it so that the rear end of the truck was moving southeast toward the right rear portion of the bus and the place where the plaintiff was fixing the chain. When Martin saw the truck moving toward the bus and plaintiff he tried to sound the horn of the bus but it would not work. The plaintiff screamed when the truck wheel went onto his legs and the truck was stopped in that position. When Burkeybile moved his truck forward, the spinning action of the wheel pushed the plaintiff several feet behind the bus. When. the occupants got out of the bus, they saw the plaintiff lying in the snow behind the bus. He was wearing dark clothing. If Burkeybile had backed straight east and had not turned to the southeast, he would not have injured the plaintiff or come close to the bus.

The evidence as to visibility was not altogether certain. There was testimony that the accident happened about 5 a. m. on March 16, 1960, although Martin thought it was about 6 a. m. There were three floodlights which cast their light mostly on the ground in front of the building. Lights inside the garage would be visible through the glass panes in the overhead doors. There was testimony that there were lights on the bus and the truck and that daylight was starting to break.

Excerpts from defendant Burlceybile’s deposition put in evidence as admissions against interest were to the effect that when Burkeybile was instructed by the district foreman to do further work on the highway he came out of the garage and went to his truck to “gas up”. The gasoline pump was located on the parking area about 55 feet east of the building and about on a line with its northern side according to the plat and photographs in evidence. He got into his truck, started the motor, turned on the lights, and started to back. As he did so, he left the door on the driver’s side open and looked toward the motor grader to see that the front of his truck missed the blade of the grader. There was a snowplow attached to the front of his truck but it extended less than a foot beyond the left side of the truck. The cinder spreader on the rear of the truck was no wider than an ordinary truck. The grader was about twice as long as his truck and about half of his truck had passed the grader when he heard the plaintiff scream. Burkeybile further stated that the bus had been driven right up behind the grader; that it was hidden from his view by the grader and not because of the snow; and if the motor grader had not been there he would have seen the bus. He did not know if there were any lights on the grader, but the lights on the building were about as bright as those on the grader would have been.

On objection by the defendant Burkey-bile, the court excluded other depositional statements offered as admissions against interest In substance the excluded statements tended to prove that Burkeybile was one of five highway maintenance men who had been on duty since 7 p. m. the day before; that all five of them were at the maintenance depot at the time the accident happened. Burkeybile and Johnson, another employee, had returned to the garage a little before 5 a. m. Burkeybile parked his truck near the north door of the garage; he did not leave the motor running. He then proceeded to put oil in his truck and performed other chores, all of which took about ten minutes after which he went into the garage and stood around the stove with other employees. He went in and out of the garage through the small door on the north side. Shortly after Burkeybile entered the garage, the district foreman called and directed him and a fellow worker to go back out to a designated section of the highway. The truck did not have backup lights, but there were “great big red tail lights” which showed “a little light” to the rear. Objections to the statements offered were on the ground that they did not constitute admissions against interest in that they did not tend to show liability and that the defendant Burkeybile was in court and could be called by plaintiff as a witness.

In order for a statement of a party to be competent as an admission against interest, it is not necessary that it be a direct admission of the ultimate fact in issue, but it may be competent if it bears on the issue incidentally or circumstantially. Donnelly v. Goforth, Mo., 284 S.W.2d 462, 465[2]; Albertson v. Wabash R. Co., 363 Mo. 696, 253 S.W.2d 184, 189 [6]; Hoeffner v. Western Leather Clothing Co., Mo.App., 161 S.W.2d 722, 730[20]; 31A C.J.S. Evidence § 272, p. 697. Furthermore, a statement “made in a deposition, relevant to the issues, may be admitted against the deponent as admissions against interest in the same or another action to which he is a party, even though he is present in court and able to testify, or has testified.” 31A C.J.S. Evidence § 308b, p. 792. Among numerous Missouri cases supporting this statement of the law are Brown v. Kroger Co., Mo., 334 S.W.2d 80, 82 [2] ; Wilt v. Moody, Mo, 254 S.W.2d 15, 18[2, 3] ; Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400, 411 [8] ; and Dawes v. Williams, 328 Mo. 680, 40 S.W.2d 644, 646 [2]. The statements referred to tended to show relevant circumstances and the court erroneously excluded them; however, since they are preserved in the transcript, they will be considered in connection with the questions presented on appeal.

The state highway commission is empowered to acquire in the name of the State of Missouri by condemnation or otherwise “sites for garages and division offices and for storing materials, machinery and supplies”. Section 227.120(10), RSMo 1959, V.A.M.S. The evidence demonstrates that the area in question was such a place. The area was adjacent to the highway and an open driveway connected them. The plaintiff’s purpose in going onto the premises and his activities in carrying out his purpose were such that it cannot be said that he was a trespasser or unlawfully on the premises at the time he was injured. The defendant contends the plaintiff was at most a licensee and we may so consider him for the purposes of this case although the category in which he is placed is not necessarily controlling in view of the fact that active negligence is charged. See Anderson v. Welty, Mo.App, 334 S.W.2d 132, 136[5], and 65 C.J.S. Negligence § 35 i, pp. 501—502.

Where injuries to a licensee are caused by the affirmative or active conduct of another, as distinguished from an existing or passive condition of the premises, the person committing the acts is subject to liability for failure to exercise ordinary care towards such licensee if his presence on the land is known or should reasonably be known to the actor. Anderson v. Welty, Mo.App, 334 S.W.2d 132, 136-137[6] ; Gruetzemacher v. Billings, Mo, 348 S.W. 2d 952, 959[7]; Twine v. Norris Grain Co, 241 Mo.App. 7, 226 S.W.2d 415, 422[7]; 65 C.J.S. Negligence § 35 h, p. 501, § 36, p. 502. There can be no doubt that the operation of a motor vehicle is active or affirmative in nature regardless of where it occurs.

On the record before us there is no showing that highway travelers or other persons other than employees customarily used or frequented the maintenance area; hence, there is no basis for holding that there was a constant or continuing duty to anticipate that persons other than employees of the highway department would be on the premises. But there is substantial evidence from which a jury could reasonably find under the circumstances on this particular occasion that the defendant Burkeybile knew or should have known that the plaintiff and the vehicle in which he was a passenger were on the premises. The evidence would support a finding that Burkeybile was in the garage and one of the highway employees around the stove when the plaintiff entered, explained his mission, and obtained a piece of wire to repair the tire chain. Further the jury could find that Burkeybile, as he came out of the north door of the building and went along the left side of his truck, saw or could have seen the bus with lights on it parked behind and about a foot north of the grader. Under the circumstances the jury could find that Burkeybile had the duty of observing to determine whether there was any person around or about the standing vehicle. 7 Am.Jur.2d, Automobiles and Highway Traffic § 381, p. 930. There is evidence from which the jury could reasonably find that the lighting conditions and visibility were such that if Burkeybile had looked he could have seen the lower portion of plaintiff’s body on the snow at the right rear corner of the bus. The jury could reasonably find that under the circumstances shown on this particular occasion the defendant Burkeybile had a duty to keep a lookout for the plaintiff and the vehicle in which he was a passenger and to exercise ordinary care to avoid injuring him, and the violation of that duty would constitute primary negligence. Haines v. Bridges Asphalt Paving Co., Mo., 55 S.W.2d 431, 433 [2, 3] ; Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116, 123[7], 124[17]; Osby v. Tarlton, 336 Mo. 1240, 85 S.W.2d 27, 30[1, 2]; Horrell v. St. Louis Public Service Co., Mo., 277 S.W.2d 612, 614[1] ; Caulton v. Eyre & Co., 330 Pa. 385, 199 A. 136; Potter Title & Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76.

The evidence tends to prove that Burk-eybile did not maintain a lookout for the plaintiff or the bus in which he was traveling. In fact the defendant conceded that he kept no lookout other than to see that his truck cleared the grader as he turned and backed on a collision course with the plaintiff and the standing bus. On the record we are constrained to hold that the plaintiff made a submissible case of primary negligence and that the trial court erred in sustaining the motion for a directed verdict.

The defendant further contends that plaintiff was guilty of contributory negligence as a matter of law in lying under the bus with his legs extended. The cases cited in support involve voluntary exposure to danger on city streets, sudden entry by the injured party into the danger zone and such other circumstances as to make them inapplicable and not controlling in this case. From the evidence the jury could find that there were no other persons outside the garage when the plaintiff set about repairing the tire chain, a chore which could hardly be expected to take an inordinate amount of time. There were lights on the bus and the plaintiff was about seven feet from the path of the truck if it had been moved back in a straight line. It was not until the truck was turned and backed on a collision course with the standing bus that the plaintiff was endangered. A person is not required to look for danger where he has no cause to anticipate it, or when the danger would not exist but fo.r the negligence of another. Anderson v. Welty, Mo.App., 334 S.W.2d 132, 137-138 [8]; Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295, 299 [7]. Reasonable minds could differ on the question of plaintiff’s contributory negligence so we cannot say as a matter of law that the case is not submissible by reason thereof. The issue of contributory negligence was for the jury. Binion v. Armentrout, Mo., 333 S.W.2d 87, 91 [4, 5]; Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, 499-500 [1-4] ; Lucas v. Barr, Mo.App., 297 S.W.2d 583, 585 [2] ; Brandt v. Thompson, Mo., 252 S.W.2d 339, 341 [1 & 2],

The plaintiff also contends he was entitled to submit his case to the jury on the humanitarian theory of negligence. We cannot agree. A humanitarian case which leaves one or more of the essential elements to guesswork, speculation, or conjecture is not for the jury. Moore v. Ervin, Mo., 374 S.W.2d 142, 149[3]; Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, 497[4], On this score the petition charges that Burkeybile saw or could have seen plaintiff in a position of imminent peril in time thereafter to have sounded a warning, to have stopped the truck, or to have swerved the truck aside and thereby avoided the injury. There is no evidence as to when or at what distance the direction of the truck’s backward movement was turned to the southeast toward the plaintiff. In short there is no evidence from which the jury could find when or at what distance the plaintiff came into a position of imminent peril. Nor is there evidence from which the jury could find that the defendant had the ability to warn, stop, or swerve after imminent peril existed. See Bunch v. Missouri Pacific R. Co., Mo., 386 S.W.2d 40, decided January 11, 1965.

Furthermore, in order to extend the humanitarian doctrine to discoverable peril as well as discovered peril, there must be a duty to keep a continuous lookout such as is imposed as a matter of law in public places, such as streets and highways, or in places public in nature because they are frequented and used by many people. Faught v. Washam, 365 Mo. 1021, 291 S. W.2d 78, 82[4]; Green v. Guynes, 361 Mo. 606, 235 S.W.2d 298, 302[7]; State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W. 2d 1193, 1196 [4]. Where the duty to keep a lookout depends on the facts and circumstances of the particular occasion, the humanitarian doctrine is inapplicable insofar as discoverable peril is concerned, and the failure to keep the lookout required by the circumstances is a matter of primary negligence only. State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W.2d 1193, 1196 [2 & 3] ; Kobusch v. Ruberoid Co., 355 Mo. 48, 194 S.W.2d 911, 914[4]; Anderson v. Prugh, 364 Mo. 557, 264 S.W.2d 358, 364 [12]. On the record before us, the maintenance area was not a place where a continuous lookout was required as a matter of law and there is no evidence that Burkeybile actually discovered the plaintiff in a position of imminent peril. The trial court did not err in ruling that a submissible case of humanitarian negligence had not been made.

The remaining contention is that the trial court erred in failing to quash the service on the defendant Burkeybile and to dismiss plaintiff’s petition. Burkeybile’s first pleading was a motion to dismiss for failure to state a claim filed June 13, 1962, and overruled August 10, 1962. On August 22, 1962, he filed his separate answer which did not raise the issue of improper venue. On February 28, 1963, after depositions had been taken and interrogatories propounded, Burkeybile filed his motion to quash and dismiss on the ground that the defendant Haworth had been made a party defendant for the sole purpose of establishing venue in Greene County and to obtain jurisdiction over Burkeybile who was a resident of Grundy County. The motion alleged that “there was and is no factual basis which would support an honest belief on the part of plaintiff that he had a cause of action against the defendant Haworth.” The motion incorporated by reference the interrogatories, answers thereto, and various depositions which were before the trial court when he overruled the motion on March 11, 1963, and have been lodged in this court.

The defendant Burkeybile con^ cedes the plaintiff’s petition stated a cause of action against Haworth but asserts that actually the plaintiff had no factual grounds for believing Haworth could be subjected to liability. He relies on Diehr v. Carey, 238 Mo.App. 889, 191 S.W.2d 296, 300-301 [5-6], and similar decisions for the legal proposition that the court in order to determine if there has been a fraudulent joinder will look behind the pleadings and determine whether any “factual basis could exist to support an honest belief on plaintiff’s part that he had a cause of action against the resident defendant”. This does not mean, however, that there must be a showing that the plaintiff will ultimately succeed in his action. We need only determine if the plaintiff was entitled to an honest belief that under the law and the evidence he had a justiciable claim against Haworth.

Both sides have briefed the questions exhaustively but we need not explore all of the propositions suggested. The evidence shows that Haworth agreed with the booking agency to furnish the transportation for the performers, including the plaintiff, on this trip as he had done on others on a mileage basis. The plaintiff thus became a passenger in Haworth’s bus and Haworth owed his passengers a duty to exercise due care to transport them safely. Martin became Haworth’s agent when he took over the driving with the permission and consent of Haworth. Haworth retained his status as principal although he took a rear seat and perhaps went to sleep. The evidence is reasonably susceptible of this interpretation. The doctrine of joint venture and the fellow-servant relationship suggested by the defendant have no bearing on this record. The fact that the door on Martin’s side was jammed and would not open, that the tire chain broke or became loose, and that the horn did not blow when Martin undertook to use it as a warning are evidentiary circumstances but need not be depended upon as the proximate cause of the injury.

If the door on Martin’s side would have been operable, Martin might well have been the one to secure the wire and repair the chain. At least the plaintiff’s status was such that he' could have expected Martin to do so. The situation is somewhat comparable to where a person under no obligation to do so undertakes to assist in extricating or starting an automobile. In this situation the operator of the motor vehicle owes a duty of exercising ordinary care to avoid injury to the one furnishing the help, and this includes a duty to warn of any activity which might be hazardous to the person helping. 7 Am.Jur.2d, Automobiles and Highway Traffic § 383, p. 932. Further in 8 Am,Jur.2d, Automobiles and Highway Traffic § 602, p. 1S4, it is stated: “For example, negligence in operation may exist on the part of one into whose control the motor vehicle has been delivered by the owner, although the former was not actually driving the vehicle at the time of the accident from which the liability of the owner arose. The user may be found guilty of negligence in operation so as to render the owner liable, where he fails adequately to protect one who offers his assistance in repairing the vehicle when it is in a disabled condition on the highway, * * * ” Again in 8 Am.Jur.2d, Automobiles and Highway Traffic § 615, p. 165, we have this statement: “The relationship between the owner of the motor vehicle and one employed by him to drive it, as regards the former’s liability for the latter’s negligence, is the same as that between employer and employee generally. It makes no difference as to the owner’s liability whether he was present in the motor vehicle or not at the time of its negligent operation, so long as it was being driven in the scope of the driver-employee’s employment or in furtherance of the owner-employer’s business.” This suggests the doctrine of respondeat superior rather than imputed negligence. In Fletcher v. Kemp, Mo., 327 S.W.2d 178, 182, this court applied the rule that “a duty to exercise ordinary care is imposed upon one who invites another to assist in an operation.” In view of the settlement of plaintiff’s claims against Haworth and Martin previously referred to, it is unnecessary to determine if a submissible case was made as to them and we do not do so. In view of the statements of law, such as the foregoing, and the facts of the case, however, it is not unreasonable and wholly baseless to contend that the plaintiff was entitled to a warning of some sort from Martin acting in the place and stead of Haworth. Such warning could have been directed either to Burkeybile or the plaintiff when Martin saw the truck about to back toward the place where the plaintiff was engaged in repairing the chain. Martin was able to get out of the bus and did so very promptly when the plaintiff screamed.

The law in the field involved is not so well settled that Haworth’s joinder can be held to be fraudulent or pretensive and with no reasonable prospects of recovery. The court did not err in overruling the motion to quash the service and to dismiss the plaintiff’s petition. Lichterman v. Crockett, Mo., 331 S.W.2d 607, 609-610[1-2] ; Willey v. Fyrogas Co., 363 Mo. 406, 251 S.W.2d 635, 638[1], The plaintiff also contends that Burkeybile waived his right to complain by filing an answer to the merits, taking depositions, and otherwise entering a general appearance in the case before attacking the venue. Since we have held the joinder to be proper, we do not determine the question of waiver.

For the reasons stated judgment is reversed and the cause remanded.

EAGER, J., concurs.

FINCH, J., not participating because not a member of the court when cause was submitted.


author: WOLFE, Judge.

text:
    Walter A. EILERS, (Plaintiff) Appellant, v. UNION ELECTRIC COMPANY, a Missouri Corporation, (Defendant) Respondent.
    No. 31465.
    St. Louis Court of Appeals. Missouri.
    Dec. 15, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 11, 1965.

      Maurice Schechter and Victor R. White, Jr., St. Louis, for appellant.
    Keefe, Schlafly, Griesedieck & Ferrell, Robert J. Keefe, William H. Ferrell, St. Louis, for respondent.
   WOLFE, Judge.

This is an action for damages arising out of personal injuries and property damage sustained by the plaintiff when the automobile which he was driving collided with a utility pole on the shoulder of the highway over which he was driving. The plaintiff contended that the collision was caused by his automobile striking a pole lying on the shoulder of the highway. He contended that this pole caused him to lose control of his automobile and caused it to collide with an upright pole. Both the upright utility pole and the pole on the shoulder belonged to the defendant. The jury returned a verdict for the plaintiff awarding him $10,000 damages. The defendant filed a motion to set aside the verdict and judgment and to enter a judgment in accordance with its motion for a directed verdict at the close of all of the evidence, and in the alternative to grant a new trial. The court overruled the motion to set aside the verdict and judgment and to enter a judgment for the defendant; but it sustained the motion for a new trial. In due time the plaintiff appealed from the order granting a new trial, and he seeks in this appeal to have the judgment reinstated.

The plaintiff lived in the City of St. Louis. At the time of trial he was employed by the United States Post Office as a clerk, and had been so employed for twenty-six years. He was fifty-two years of age. On Sunday, May 22, 1960, he had been visiting friends in Crystal City, Missouri. At about 3:30 o’clock in the afternoon he left Crystal City to return to St. Louis. He dr:ve northwardly on Highway 61, which runs in a general north and south direction. It is a paved highway and consists of four lanes of traffic; two for northbound traffic and two for southbound traffic. On the east side, which was plaintiff’s side of travel, there was a shoulder of a width estimated to be five or six feet. This was surfaced with gravel, but had grass and weeds growing upon it. The defendant Union Electric Company had an easement for the construction and maintenance of utility poles on the shoulder mentioned, and they did maintain a line of poles on the east shoulder.

The day was sunny and bright, but the sun was not bothering the plaintiff, as it was to his rear as he traveled northwardly. He reached a place about two miles north of the St. Louis County line where the road was straight. There were curves to be encountered farther on where he thought the sun would bother him, so he decided to pull off of the pavement and stop on the shoulder to adjust his sunshade and put on his sun glasses. The traffic was heavy and traveling at a speed of about 50 miles per hour. He turned on his right directional signal and slowed his car by applying the brakes. He was traveling between 35 and 40 miles per hour when he turned onto the shoulder. On the shoulder, about 35 or 40 feet ahead of him, was a standing utility pole which he planned to pass with about one foot of clearance so that he could stop in the space beyond it.

Just before reaching the pole which he intended to pass, his car struck something that blew out a tire and caused him to lose control. His car ran into the upright utility post. It broke the post off so that it was hanging by the wires that it carried. The automobile continued on and came to rest on the shoulder beyond the pole. The plaintiff was rendered unconscious for a short period by reason of the impact. After regaining consciousness he walked back to the area of the collision to see what his car had struck prior to its collision with the upright pole. There he saw a piece of a utility pole south of the pole which he had struck. This piece of pole was nearer the pavement than the standing pole had been. The end of it extended beyond the standing pole toward the pavement. The plaintiff stated that the gravel had been disturbed for a distance of four feet south of where the pole lay, as though it had been shoved by the impact of his automobile upon it. He also said that the end of the pole was splintered.

There was testimony that the piece of pole had been lying on the shoulder for about a month prior to the collision. The pole had a “U” on it, which was a mark used by the Union Electric to identify its poles. The plaintiff stated that the pole on the ground was concealed from his view by the high grass and weeds in which it was lying. While the plaintiff was still at the scene of the accident, a highway patrolman arrived and questioned him. The plaintiff stated that he talked to the patrolman ten or fifteen minutes. He did not tell him about any pole lying in the grass, but stated that he lost control of the car. He testified that at the time he talked to the patrolman he was still in a state of shock and in pain. The plaintiff left the scene of the accident in a tow truck which had been called to remove his automobile.

The plaintiff called as witnesses four employees of the Union Electric. One of them was a supervising engineer of the southern district, and he testified that the defendant’s records showed that no work had been done in the area of the accident since 1926 except for the replacement of the pole knocked down by the plaintiff. He stated that a “U” on a pole would indicate that it was the property of the Union Electric Company. An assistant overhead supervisor was called, and he described the condition of the splintered pole that had been struck and his work in replacing it. He said that it was cut down and the parts so cut were pushed to the east of the shoulder until they could be picked up. On cross-examination he stated that there were no poles on the ground in the area where the broken pole stood. A line crew foreman and a troubleman who worked on replacing the broken pole told of the condition of the pole, and they also testified that there was no pole or broken pieces of a pole in the area of the accident at the time they worked there.

Three photographs of the area were put in evidence which the plaintiff said he had taken about a month' after the accident. These showed a portion of a pole on the ground at the foot of the new upright pole, and the plaintiff identified it as the pole that he had struck and saw there after the accident. All of the foregoing constituted the pertinent evidence offered by the plaintiff. He offered evidence relating to his injuries and property damage, which we will not set out because none of the points raised touch upon it.

The defendant’s only witness who testified in relation to the accident was a Missouri Highway patrolman who came to the scene. He testified that he interviewed the plaintiff, and that the plaintiff said, “I was having trouble with the sun and lost control.” The trooper testified that he had walked back and forth over the area, and that there was no pole on the ground.

As stated, there was a verdict and judgment for the plaintiff. The defendant’s motion for a new trial contained an assignment of error relating to the verdict-directing instruction that had been given on behalf of the plaintiff. The instruction required a finding that a section of a utility pole had been placed by the defendant on the shoulder of the road which constituted a traveled portion of the highway, and that the section of the pole was concealed by grass and weeds. It then continues with a required finding of facts relating to the plaintiff operating his automobile on the shoulder of the road, and striking the section of the pole which caused him to strike the standing pole. There was no requirement in the instruction that the jury should find that the acts of the defendant were negligent.

The court sustained defendant’s motion for a new trial on the ground that the instruction was erroneous, and specified as error points 1(a), 1(b), 1(d), and 1(h) contained in the motion. Point 1(a) was directed to the failure of the instruction to require a finding that the acts charged against the defendant were negligent. Point 1(b) was that the instruction was outside the scope of the pleadings. Point 1(d) was that the instruction failed to require a finding that the section of the pole had been permitted to remain on the highway for an unreasonable length of time. Point. 1(h) was that the instruction failed to require a finding that the defendant knew that the section of the pole was located on the highway in a position where it would be hazardous for motorists using the shoulder.

At the outset of the case the plaintiff’s petition contained two counts— one of negligence, and the other charging the defendant with the maintenance of a nuisance. Upon motion of the defendant the nuisance count was dismissed, and the trial was on the first count charging negligence. After the trial and the filing of the motion for a new trial by the defendant, the plaintiff sought to amend his petition to state an action for the maintenance of a nuisance. But this was denied by the trial court. Here the plaintiff first seeks to justify the instruction on the ground that the defendant did in fact maintain a nuisance by leaving the section of the pole on the shoulder, and that he should have been allowed to amend his petition at the time when he requested permission to do so. We are not, however, concerned with this point as we have reached the conclusion that the instruction was sufficient to instruct the jury on the negligence count of the petition under which the case was tried.

The appellant’s second contention is that the instruction was not erroneous in failing to require that the facts hypothesized constituted negligence because the facts, if true, constituted negligence as a matter of law. The duty generally rests upon the jury to determine whether the facts hypothesized and found by them constitute negligence. McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693. But where the facts properly hypothesized call only for the conclusion that they constitute negligence — and with that conclusion no reasonable men can disagree— it is not necessary to submit the question of negligence to the jury. The law draws the conclusion in such cases. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W. 2d 914; McCaffery v. St. Louis & M. R. Ry. Co., 192 Mo. 144, 90 S.W. 816; Munden v. Kansas City, Mo., 225 Mo.App. 791, 38 S.W.2d 540; Keaton v. Good, Mo.App., 350 S.W.2d 119.

We held many years ago, in Denny v. Virginia Bridge & Iron Co., 150 Mo. App. 72, 129 S.W. 714, that the placing of an obstruction in a place which people were “licensed” to use was negligence. We consequently hold that the instruction was not erroneous in failing to require that the jury find that the facts hypothesized constituted negligence.

That which we have said above disposes of the point relied on by the trial court, which stated that the instruction was erroneous because it went beyond the scope of the pleadings. The petition charged negligence, and the facts constituting the negligence charged are fully stated in the instruction.

The remaining point relied upon by the trial court in granting a new trial, as stated, was the failure of the instruction to require a finding that the section of the pole had been on the highway for an unreasonable length of time prior to the accident, and that there was no finding required that the defendant knew, or should have known, it was there. The charge here was that the defendant placed the section of the pole where it was. If the offending article or substance is placed by a defendant or its agents or employees where it will harm others, the defendant then has actual or constructive notice of its being there. So the question of time and notice is no longer present. Hartmann v. St. Louis-San Francisco Railway Co., Mo.App., 280 S.W.2d 442; Wood v. Walgreen Drug Stores, Mo.App., 125 S.W.2d 534; Armstrong v. Kroger Grocery & Baking Co., Mo.App., 78 S.W.2d 564.

From the foregoing we conclude that the trial court erred in granting a new trial upon the grounds stated in its order. The respondent, however, reminds us that in defending the action of the trial court in sustaining the motion it is not confined solely to the grounds specified by the court, and that if the order sustaining the motion for a new trial may be upheld on other assignments in the motion, it is entitled to have them reviewed. This is the rule as stated in Overton v. Tesson, Mo.Sup., 355 S.W.2d 909; Cantwell v. Zook, Mo.Sup., 250 S.W.2d 980; State ex rel. Spears v. Hughes, 346 Mo. 421, 142 S.W.2d 3.

The instruction required a finding that the pole section was placed on the shoulder by the defendant, and it was contended in defendant’s motion for a new trial, and is contended here, that there was no evidence to support this. The plaintiff’s evidence located the pole section upon the shoulder of the road, as we have stated above. This was in an area where the defendant had an easement to maintain power lines on such poles. The pole had the mark that identified it as a pole belonging to the defendant. This gave rise to a valid inference that it had been placed there by the defendant. We consequently rule this point against the respondent.

The second point raised by the respondent is that the court erred in not sustaining its motion to set aside the verdict and enter a judgment for the defendant. It is asserted that the plaintiff was guilty of contributory negligence as a matter of law. It is argued in support of this contention that the plaintiff was negligent in turning onto the shoulder which had grass and weeds upon part of it, at a speed of 35 to 40 miles per hour. We are cited to some cases wherein the plaintiff was held to be negligent as a matter of law, but all of them are readily distinguishable from the facts before us. Here there was in evidence photographs of the area showing a level, gravel-covered shoulder, covered in part with grass. The only evidence as to the plaintiff’s speed were estimates given by the plaintiff and one of his witnesses, and this ranged from 30 to 40 miles per hour.

We cannot say, from a consideration of all of the evidence favorable to the plaintiff, that the only conclusion which could be drawn is that the plaintiff was negligent, and that his negligence was the proximate cause of his injury. This is what we would be obliged to do if we held the plaintiff negligent as a matter of law. Dye v. Geier, Mo.Sup., 345 S.W.2d 83; Kickham v. Carter, Mo.Sup., 314 S.W.2d 902; Highfill v. Maier, Mo.App., 379 S.W. 2d 191.

The order granting a new trial is reversed and the cause remanded with directions to reinstate the judgment for the plaintiff.

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