author: BARRETT, Commissioner.

text:
    STATE of Missouri ex rel. George W. VOSSBRINK, Paul A. Hale, J. L. Atkinson, Nannie Jenkins, Roger Smith, H. C. Holt and Elmo Ingenthron, Respondents. v. Milton CARPENTER, Treasurer of the State of Missouri, Charles D. Trigg, Comptroller and Director of the Budget of the State of Missouri, Hubert Wheeler, Commissioner of Education, and Mrs. True Davis, Elston Melton, Louis W. Menk, Warren Head, T. A. Haggard, Charles F. Lampkin, Jack Webster, Francis Harriet Williams, Members of the State Board of Education, Appellants. George W. VOSSBRINK, Paul A. Hale, J. L. Atkinson, Nannie Jenkins, Roger Smith, H. C. Holt, Elmo Ingenthron, Ben Frieberger, Donald Stewart and Carroll McCubbin, Respondents, v. Milton CARPENTER, Treasurer of the State of Missouri, Charles D. Trigg, Comptroller and Director of the Budget of the State of Missouri, Hubert Wheeler, Commissioner of Education, and Mrs. True Davis, Elston Melton, Louis W. Menk, Warren Head, T. A. Haggard, Charles F. Lampkin, Jack Webster, Francis Harriet Williams, Members of the State Board of Education, Appellants.
    Nos. 50215, 50216.
    Supreme Court of Missouri, En Banc.
    March 8, 1965.
    Rehearing Denied April 12, 1965.

      Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld, Asst. Atty. Gen., Jefferson City, for appellants.
    Warren D. Welliver, Terence C. Porter, Columbia, Welliver, Porter & Cleaveland, Columbia, of counsel, for respondents.
   BARRETT, Commissioner.

In this appeal two separately instituted actions, one for a declaratory judgment and the other in mandamus, have been consolidated for all purposes. The ten plaintiff-relators are the duly elected superintendents of schools of their respective counties: Vossbrink, St. Louis County, Hale, Greene County, Atkinson, Lafayette County, Jenkins, Hickory County, Smith, Cole County, Holt, DeKalb County, Ingenthron, Taney County, Frieberger, Callaway County, Stewart, Cass County, and McCubbin, Miller County. The defendant-respondents are the State Treasurer, the Comptroller, the Commissioner of Education and the members of the State Board of Education.

In addition to their regular salaries as superintendents of schools, the statutes relating to county superintendents provide that they shall also receive certain additional sums, depending in some instances on the class county, “as supervisor of school transportation” and for the preparation of “a detailed budget of estimated receipts and disbursements.” Sections 167.050-167.260 RSMo 1959, V.A.M.S. The General Assembly has appropriated the necessary funds for the support and maintenance of the public schools of the state but by reason of an Attorney General’s opinion and a recommendation or determination of the Commissioner of Education, since April 1961, the State Board of Education, the State Treasurer and the State Comptroller have refused to perform their functions and certify and disburse to the ten counties represented by these plaintiff-superintendents the funds necessary for the payment of these two items of additional compensation. Consequently, as stated, the superintendents instituted these two actions for a. declaration of rights and to compel the certification and transfer of funds. Except for Mr. Frie-berger whose special case requires separate consideration, the defendant-respondents made the same general answer and response to the plaintiffs’ claims, in substance that there are no common school districts in these ten counties, hence, there are no duties for these ten superintendents to perform as supervisors of school transportation or with respect to school budgets and therefore it was asserted they were not entitled to compensation for these nonexistent duties and functions. In addition to a denial of the claims of the plaintiffs the defendant-respondents filed a counterclaim in which they sought to recover the sums previously paid the plaintiffs for these particular duties.

The cases were submitted on stipulated or agreed facts, from the defendant-appellants’ standpoint the most important fact being, at least in most of the counties, that there were no common school districts (presumably all districts have been consolidated) and that in these counties there are town or city districts employing a school superintendent who devotes at least one half his time to the direct work of supervision. The court found the issues in favor of the plaintiffs in detail, it is not necessary here however to set forth the judgment and decree in full. The essence of the court’s view which obviously is the crux of the case is illustrated by this quotation from the judgment: “the Legislature of the State of Missouri has enacted no provision which abolishes the office of County Superintendent of Schools or withdraws the contribution made by the State of Missouri to the counties for compensation of County Superintendent or provides that the salary of County Superintendent of Schools ceases on accomplishment of complete reorganization of the schools of the county, or abolishes the function of acting as supervisor of school transportation or abolishes the function of preparing a detailed budget for each school district under the County Superintendent’s supervision, either expressly or by implication, or by virtue of the accomplishment of complete reorganization of the schools of a county.”

It was stipulated that Cole, DeKalb and Taney counties each contained school districts whose superintendents devoted less than half their time to the direct work of supervision and so, quoting from the defendant-appellants’ brief, “Smith, Holt and Ingenthron (superintendents in those three counties) have been and still are receiving compensation for the preparation of the budget for each school district under his supervision. There is no controversy with respect to their respective rights thereto.” It also appears from the pleadings of the parties that three of the superintendents, Stewart (Cass County), McCubbin (Miller County) and Frieberger (Callaway County), do not fall in the categories relied on by the appellant and unless Frieberger is disqualified for another reason these three parties are admittedly entitled to compensation for bus and budget supervision. These tacit or plainly admitted concessions serve to sharply point up the only meritorious issues involved on the appeal. The defendant-respondents have briefed and argued five principal points but in their essentials three of the points are but another way of presenting the same problem as is indicated by their citation of the same authorities under all three points. It will suffice to present their contentions against the judgment and decree to extract two or three quotations from their brief: “The Court erred in failing to find and declare that Sections 167.050 and 167.060, RSMo [V.A. M.S.], do not require or permit defendants to disburse or expend out of funds appropriated for the support and maintenance of public schools or otherwise any money to be used as compensation of county superintendents of schools as supervisors of school transportation in counties which have no common school districts and in which by reason thereof there is no school transportation established by such districts and the county superintendents of schools in said counties cannot and do not perform any duties as supervisor of school transportation.” (Emphasis supplied.) “Plaintiffs were lawfully relieved of the duty of acting as supervisor of school transportation in the counties in which they are acting as county superintendent of schools by the lawful elimination of all common school districts in said counties and therefore are not entitled to and may not he paid compensation for the duties of which they were lawfully relieved.” Or, as to their budget functions and compensation, “The Court erred in failing to. find and declare that Sections 167.130, 167.160, 167.200 and 167.240, RSMo [V.A.M.S.], do not require or permit defendants to disburse or expend out of funds appropriated for the support and maintenance of public schools or otherwise any money to be used as compensation of county superintendents of schools for preparation of school budgets in counties in which there are no schools under the supervision of the county superintendent of schools and in which by reason thereof the county superintendent of schools in said counties cannot and does not perform any duties in connection with preparation of school budgets.”

In support of their respective claims the parties have invoked the general rules of statutory construction but the auxiliary rules are of but limited persuasive force in compelling a conclusion. Perhaps it should suffice to say that this court agrees with the trial court’s conclusion and disposition of the cause but it is necessary in response to the appeal to indicate certain reasons and factors convincingly supporting the judgment and decree. In the first place, the state’s appropriations for the support of free public schools “shall be paid at least annually and distributed according to law.” Const.Mo. Art. IX, Sec. 3, V.A.M.S. The counties have not been made parties to this action, but the tenor of all the statutes involved in these proceedings is that funds appropriated by the General Assembly are to be distributed to the counties and paid out by them through their local officials, not the state treasurer or comptroller. “The several counties of this state shall receive funds from the state of Missouri to be used as compensation of county superintendents of schools as supervisors of school transportation as follows.” Section 167.060 RS Mo 1959, V.A.M.S. As to the budget in certain class counties, “The state of Missouri shall pay annually to each county of the second class six hundred- dollars, pursuant to an appropriation out of moneys regularly appropriated and set aside for the support of the free public schools.” Sections 167.160(2), 167.200(2) RSMo 1959, V.A.M. S. And again as to bus supervision, “The county treasurers of such counties shall pay over such compensation monthly, out of funds received by said county treasurers from the state of Missouri for the purpose of compensating county superintendents of schools for their duties as supervisors of school transportation, at the same time they pay the county superintendent of schools his salary for the performance of his other duties.” Section 167.180 RSMo 1959, V.A. M.S. As to third and fourth class counties: “The state of Missouri shall appropriate annually, out of the general revenue fund of state of Missouri, four hundred dollars to each and every county of the third class.” Sections 167.210, 167.240(2), 167.260 RSMo 1959, V.A.M.S. Thus plainly the legislature has entrusted the counties, the local level in school administration, with the function and business of distributing the funds appropriated for supervision of transportation and budget preparation. From the general tenor of these statutes it is the function of the appellants to distribute these funds to the counties.

In the second place, as bearing on the judgment here, there is no claim that these superintendents have abandoned their office, and “the faet that he does not perform all or any of its duties will not affect his right to the salary attached thereto unless a statute otherwise provides.” Ann. Cas.1918B, p. 435; Coleman v. Kansas City, 351 Mo. 254, 173 S.W.2d 572; Luth v. Kansas City, 203 Mo.App. 110, 218 S.W. 901, 902. If, as it must be conceded, the sums involved here are salary “the annual amount of such salary (county judge) is fixed by the Legislature and no other officer or officers have authority to change it, either before or after it is due and payable.” Gill v. Buchanan County, 346 Mo. 599, 605, 142 S.W.2d 665, 668. The General Assembly could have attached conditions to the superintendents’ right to receive additional compensation but it did not do so. One of the conditions could have been that there were or must have been common school districts with budget and transportation problems. This principle is best illustrated by a leading banc decision involving the salary of the State Superintendent of Schools, State ex rel. Evans v. Gordon, 245 Mo. 12, 149 S.W. 638. In that case there was an election contest and for the period of the contest the State Auditor refused to pay the duly elected superintendent his salary. But a statute then provided that in the event of an election contest “then no warrant shall be drawn by the auditor, or paid by the treasurer, for the salary by law attached to said office, until the right to the same shall be legally determined.” The court said, “the compensation payable to the office which relator is holding in possession was made subject to the condition that it should not be paid pending a contest for the office. Relator accepted the office with knowledge of this condition.” And as against the claim of unfairness, public policy and the depriving “a man of the just reward for his labor,” the court made the observation that “This argument could appropriately be made to the Legislature. In so far as that body is not restrained by the Constitution, it is the judge of the wisdom and fairness of its enactments. We have no right to set aside a statute unless it is clearly violative of the Constitution.”

Not only could the General Assembly have attached conditions to the superintendents’ receipt of compensation in connection with school transportation and budget, it could have authorized the appellants, the Commissioner of Education, the State Board of Education, the State Treasurer and the Comptroller or some other official to make the determination that there were no duties to perform and that therefore this part of the appropriated school funds should not be transferred to the counties as provided in chapter 167, but as the judgment implies that has not been done. Annotation 172 A.L.R. 1366, 1383, Little River Drainage Dist. v. Lassater, 325 Mo. 493, 29 S.W.2d 716. In the fields in which the legislature has deemed it necessary to delegate power to the Commissioner and State Board of Education insofar as county and local school matters are concerned, it has done so as illustrated by State ex inf. Eagleton v. Van Landuyt, Mo., 359 S.W.2d 773. But in the absence of the delegation of authority to determine the necessity or propriety of official compensation “then under our Constitution and theory of government, these are legislative powers.” The legislature has acted, it has attached no conditions or delegated no authority and in these circumstances “our fundamental laws do not support the right of one appointed executive officer to fix compensation of all other appointive officers by agreements with them in disregard of the action of the body exercising legislative power.” State ex rel. Rotbrum v. Darby, 345 Mo. 1002, 1012, 1013, 137 S.W.2d 532, 536, 537.

Against the writ of mandamus the appellants urge that the plaintiffs do not have a clear, unequivocal right to the writ, that the writ is vague, indefinite and uncertain “and wholly fails to specifically state the acts to be performed by the defendants and the sums to be paid,” that there is no allegation or proof that any funds are available for the purpose of making the payments and finally that there is “no allegation or proof that plaintiffs are not receiving payments from the county treasurers of their respective counties.” Aside from its unduly technical aspects, particularly in view of their conduct and the essential issues presented by their appeal, these arguments of the appellants are paradoxical. In view of their answers and counterclaims, in view of their present interpretation of the statutes and, undoubtedly under their previous years’ experience in administering the school laws including these statutes the appellants must know what duties they have to perform and what it is they have refused to do since April 1961. If these general observations are not sufficient to dispose of these contentions it should be pointed out that the existence or nonexistence of the funds, unlike in State ex rel. Wainright-Steedman Special Road Dist. v. Ratekin, 305 Mo. 195, 264 S.W. 908, was not an issue in this case. Of course if there had been no appropriation or the funds appropriated had been expended the writ of mandamus should not issue. State ex rel. Black v. Renner, 235 Mo.App. 829, 148 S.W.2d 809. But as the court en banc observed in another leading salary case, “There is no doubt of the power of the Legislature to refuse to make an appropriation for the payment of the salary and expenses of any public officer holding office under the Constitution or laws of this state. Neither is there any doubt as to its power to abolish any office not provided for by the Constitution. And in either case the incumbent of the office has no legal ground of complaint. But in this case the Legislature has made an appropriation for the payment of the salary and expenses of the game and fish commissioner, and the funds so appropriated are made available to pay such salary and expenses to any citizen of this state who may hold that office * * (Emphasis supplied.) State ex rel. Tolerton v. Gordon, 236 Mo. 142, 161, 139 S.W. 403, 407. It is not deemed necessary here to spell out in detail the reasons for the validity of the writ, it is sufficient to say that “ £(i)t does not issue except in cases where the ministerial duty sought to be coerced is simple and definite, arising under conditions admitted or proved and imposed by law.’ ” State ex rel. Phillip v. Public School Retirement System, 364 Mo. 395, 405, 262 S.W.2d 569, 573.

As stated in the beginning, Mr. Frieber-ger, the duly elected County Superintendent of Schools of Callaway County, presents a separate and unique problem. In accordance with the special issue made by the pleadings it was stipulated that Mr. Frie-berger was born on April 4, 1889, that in April 1955 he was elected county superintendent for a term of four years ending June 30, 1959, and that on April 7, 1959, he was again elected to the office and has since been performing the duties of the office. The importance of the stipulation is that in 1959 Mr. Frieberger was seventy years of age and, unless disqualified by age, has all the statutory qualifications for a county superintendent of schools. Ch. 167 RSMo 1959, V.A.M.S. The Teacher and School Employee Retirement Systems Act includes in its definition of a “teacher” “any county superintendent of schools * * * who shall be duly certified under the law governing the certification of teachers.” Section 169.010(6) RSMo 1959, V.A. M.S. In view of this provision the appellants contend “that plaintiff Frieberger was automatically retired from the office of county superintendent of schools of Call-away County on July 1, 1959, by operation of law, (and) is not thereafter qualified to act as such county superintendent of schools nor entitled to receive any compensation as county superintendent of schools, and that defendants may not legally disburse state funds for said purpose * * *”

In support of their argument as to Mr. Frieberger the appellants rely only on the general rules of statutory construction and the language of the statute, §§ 169.010 to 169.130, which they say must be reasonably construed and by its terms “by operation of law” automatically retired him from the office of county superintendent. As contended, whether a retirement law is self-executing or mandatory or directory or compulsory or elective depends upon its terms. 3 McQuillin, Municipal Corporations, Sec. 12.141, p. 587. And it may be assumed that the act involved here is compulsory at age seventy, but that assumption alone does not solve the problem the appellants have injected into this cause. It will be noted that the stipulation establishes but the single fact that Mr. Frieberger was 70 years of age in 1959. Again, the county is not a party to this action and neither are the trustees of any retirement fund or other parties charged with the duty of administering a retirement system. It does not appear that any prescribed procedure for retirement has been invoked or followed (3 McQuillin, Municipal Corporations, Sec. 12.161; Miller v. Police Retirement System, Mo., 296 S.W.2d 78) or even that Mr. Frieberger, aside from the mere definition of the statute, is eligible or qualified to retire under the act. Again, in short, it is neither desirable nor necessary in this particular cause to attempt a definitive spelling out of rights and duties under these important and comparatively new statutes; it is sufficient to say, even though it be assumed that the act is mandatory (Salerno v. Orleans Parish School Board, La., 117 So.2d 273) that upon this record there are insufficient admitted or established facts and parties to confidently determine Mr. Frie-berger’s rights (Annotation 52 A.L.R.2d 437), or at the mere behest of the appellants deprive him of the office and salary of superintendent of schools of Callaway County. State ex rel. Phillip v. Public School Retirement System, 364 Mo. 1. c. 415, 262 S.W.2d 1. c. 580.

For the reasons indicated the judgments in the consolidated actions are affirmed.

PER CURIAM.

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

EAGER, C. J., STORCKMAN, HOLMAN, HENLEY and FINCH, JJ., and STONE, Special Judge, concur.

HYDE, J., concurs in result.

DALTON, J., not sitting.

PER CURIAM.

Appellants’ motion for rehearing complains that the court’s opinion does not decide the question of the effect of Section 169.320, RSMo 1959, V.A.M.S. (a section of the chapter on the teacher retirement system) on Ben Frieberger and his right to continue to hold the office of County Superintendent of Schools after he attained the age of seventy. The question of the effect of that statute need not be reached for the reason that Section 167.010, RSMo 1959, V.A.M.S., which defines the qualifications of the County Superintendent of Schools, contains a grandfather clause which would be and was applicable to Ben Frieberger. That section provides in part as follows:

“ * * * At the time of his election he shall hold a certificate authorizing him to teach in the public schools of Missouri, and shall have completed at least one hundred twenty semester hours of college work, including at least fifteen hours in the field of education, not less than five of which shall have been in school supervision and administration; or he shall be serving as county superintendent of public schools.” (Emphasis added.)

Ben Frieberger was serving as County Superintendent when he reached his seventieth birthday and had been so serving for many years. That qualified him under the statute, even if he held no certificate to teach. Obviously, the provisions of the teacher retirement system statute did not take away that qualification.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: HYDE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. John M. PARKER et al., Exceptions of Anna M. Parisoff et al., Defendants-Appellants.
    No. 50809.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.
    Robert L. Hyder, Jefferson City, Minor C. Livesay, Earl H. Schrader, Jr., Kansas City, for respondent.
    Vernon N. Kneib, St. Joseph, for appellants.
   HYDE, Presiding Judge.

Condemnation of land for state highway; verdict and judgment for defendants for $65,000.00 from which they have appealed. Commissioners awarded defendants $80,-317.00 and both defendants and the State Highway Commission (hereinafter called Commission) filed exceptions. The evidence as to damages ranged from $54,400.00 shown by Commission to $111,213.25 shown by defendants so that under Sec. 3, Art. V, Constitution, V.A.M.S., jurisdiction is in this Court.

All of defendants’ land was taken so that the sole issue was the value of the land, which had a frontage on a highway being widened of 392.62 feet, with depth on the north line of 330 feet and on the south line of 346 feet. There were two buildings on the land, one 70 by 60 feet used as a grocery supermarket and another 25 by 25 feet, which recently had been rented for an office for a motor car company. The time when the value of the property was to be fixed was June 6, 1961. The highway being widened was known as the Belt Highway running north and south along the eastern part of the City of St. Joseph. On the issue of value, Commission showed sales of property in 1958 and also in 1961. Defendants’ principal claim of error is that the court refused to permit discussion of evidence of the sale of certain land within two blocks of defendants’ land in April 1961.

The land involved was purchased by the Belt State Bank from one of its directors at a price of $166.66 per front foot. This sale was shown as rebuttal testimony, the court overruling Commission’s objection that it was improper rebuttal testimony. Defendants’ counsel brought out that before this sale was made it had been discovered that the Bank’s building was partly on this land. The following testimony concerning this sale was given by the president of the Bank. “Q Did you know prior to the time you made the purchase if it was a fact the bank was built on adjoining land, that the bank was actually built on the other land? A The Rositzky land? Q Yes. A Yes. Q Did that have anything to do with making the purchase? A Yes. Q What did it have to do with it? A Well, we wanted that land because we had our building on part of it. * * * Q Did that have anything to do with the reason you gave the price you did for the second piece of property? A No sir. Q Did you consider the price you paid, $18,000.00, or $166.66 per front foot, did you consider that a fair and reasonable price to pay for it? A We did. Q Was there any pressure put upon the bank by Mr. Rositzky or anyone else to require you to buy that land? A No sir. Q Was the fact that Mr. Rositzky was a director of the Bank, did that have anything to do with your buying and paying that price for it? A No sir. * * * (cross-examination) Q At the time you discovered your bank was built, not only on your own property, but also on an adjoining tract, the bank had to have that piece of ground, isn’t that right? A Yes sir. * * (redirect) Q Did that have anything to do with the price you paid for it? A No sir.”

Thereafter, during the testimony of one of the defendants as to his measurements of distances from defendants’ property to properties the sales of which had been shown, the following occurred: “A I took measurements of the distance from the Belt Bank to the property. Q To your old property? A Yes. THE COURT: That has nothing to do with the case. MR. KRANITZ: They refer to it. THE COURT: You referred to it and have brought it in as a comparable. MR. KRAN-ITZ: Who says it is not a comparable? THE COURT: I do, the Court. MR. KRANITZ: Why? THE COURT: Because I think it was not a free sale. MR. KRANITZ: Is the Court going to instruct as to that? THE COURT: I will if necessary.”

This was raised in the motion for new trial as error “in refusing to permit the discussion of evidence as to the comparability of the property of Belt State Bank upon the asserted basis by the Court, that the sale was not a free sale or purchase,” further stating that much more land was acquired than the land on which the Bank’s building was located. However, the arguments of counsel do not appear in the transcript so it cannot be known whether there were any other requests or proceedings concerning this matter. It does not appear that any written instruction about it was given or requested nor that the evidence hereinabove set out was ever ordered stricken nor was the jury told to disregard it. Thus defendants apparently got some benefit from this evidence heard by the jury and it is difficult to determine what is preserved for appellate review. Commission cites State ex rel. State Highway Commission of Missouri v. Rauscher Chevrolet Co., Mo.Sup., 291 S.W.2d 89, 55 A.L.R.2d 773, holding that “the sale must have been voluntary in the sense that the seller and buyer were each capable and desirous of protecting his interest”; and that “the sale must not have been a forced sale, such as a tax or foreclosure sale.” See also 18 Am. Jur. 994-997, Eminent Domain, Secs. 351—352; 85 A.L.R.2d 110, 157. Most cases involve forced sales where the price is too low because the seller is under compulsion to sell. However, the same principle applies where the buyer is under compulsion to buy and might have to pay too much. Neither can be considered truly voluntary transactions on the part of both parties. “Forced sales usually involve transactions where there is an element of compulsion either on the part of the seller who is obliged to act with undue haste, thereby affording him an inadequate period in which to effect a reasonable deal, or on the part of the purchaser who for purely personal reasons or necessities is compelled to pay a higher price than an ordinary purchaser would be willing to pay.” Nichols on Eminent Domain, Vol. 4, p. 105, Sec. 12-3113.

In State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., Mo.Sup., 350 S.W.2d 771, we held it prejudicial error to show purchases by a condemnor, quoting approvingly from Lewis, Law of Eminent Domain, 3rd Ed., Sec. 667, as follows: “Such sales are not a fair criterion of value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such a price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property.” In this case, obviously the Bank had to buy because it had by mistake built part of its building on this land it did not own. The fact that the Bank bought more land than the portion which its building occupied nevertheless leaves the transaction “affected by an element which does not enter into similar transactions made in the ordinary course of business.” It may be that because the transaction was between the Bank and one of its directors the price was fair to each but it is not the kind of sale to be relied on to prove value. We hold there was no prejudicial error in the court’s ruling that this was not a free sale.

Defendants also complain of a statement made by counsel for Commission during the argument to the jury. However, the arguments to the jury are not in the transcript so there is nothing presented for appellate review as to this complaint. Defendants further claim error in the court’s rulings during the cross-examination of one of defendants about the use and occupancy of the smaller building on their land and the number of their employees including the number in certain departments of their market. Defendants say these were not elements for the jury to consider in determining the amount to be awarded them, and we find that objections to some of the questions were sustained. Commission says the occupancy of the smaller building was material to show whether it was used as an integral part of the grocery operation and to show its rental income potentiality on both of which it says defendants relied. Commission also says the questions concerning the employees were for the purpose of showing the smaller building was not an integral part of the grocery operation and that all employees performed their services in the main building. Defendants cite State ex rel. State Highway Commission v. Hoffmann, Mo.App., 132 S.W.2d 27, 32. Concerning the limitation of the cross-examination therein, the court said: “While reasonable latitude is permitted on cross-examination as to values, yet it should not be extended to immaterial matters, which have no relevancy to the issues under consideration.” However, the court in finding no prejudicial error ruled: “Besides, the extent of a cross examination, particularly in extraneous, foreign and immaterial matters, rests largely in the discretion of the trial court and we think the court did not abuse its discretion in its ruling.” See also Gildehaus v. Jones, 356 Mo. 8, 200 S.W.2d 523, 526; Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104, 111. Defendants also cite State ex rel. State Highway Commission v. Turk, Mo.Sup., 366 S.W.2d 420, in which we held noise and speed on the highway were not elements of damages. The judgment therein was reversed because of admitting evidence of noise and speed and permitting argument based on it, as elements of damages, together with other errors in failure to instruct the jury to disregard certain improper testimony and permitting improper argument on other matters. After reading the cross-examination of which defendants complain, our conclusion is that the court did not abuse its discretion in its rulings on this cross-examination.

The judgment is affirmed.

All concur.


author: HOLMAN, Judge.

text:
    Syrel L. STATLER, (Plaintiff) Respondent, v. ST. LOUIS ARENA CORPORATION, a Corporation, (Defendant) Appellant.
    No. 50652.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.
    Mogab & Hughes, Charles A. Mogab, Richard L. Hughes, St. Louis, for respondent.
    Ackert, Giesecke & Tompkins, David J. Tompkins, St. Louis, for defendant, appellant.
   HOLMAN, Judge.

Plaintiff sustained personal injuries while riding as a passenger on one of defendant’s amusement devices called the “Flying Cages,” which was in operation at Forest Park Highlands in St. Louis, Missouri. In this suit to recover damages for his injuries the jury returned a verdict for plaintiff in the sum of $22,500. Defendant has appealed from the ensuing judgment.

There were four Flying Cages in the “ride” involved and each operated as a separate unit. No mechanical energy was used in the operation of the device. Each cage was held in place by supporting “arms” with a series of counterweights located on the extensions of these arms which had the effect of overcoming the force of gravity so that a person in the cage could swing the cage back and forth and completely rotate it with the cage always remaining in a horizontal position. As many as four people were permitted to operate a cage. The cage was operated by the passenger’s “manipulation of their body, their own weight, they make the cage swing back and forth, and they go higher and higher until, with the proper energy and. the proper coordination they can take the cage entirely over the top. The cage always remains upright; the bottom of the cage always remains perfectly horizontal to the cage.” The occupants were permitted to operate the cage for approximately three minutes, and when the employee in charge of the operation was ready to apply the brake it was his duty to first warn the occupants to hold onto the rods on each end of the cage.

The braking device was a friction brake with a piece of metal located in the platform just under the cage when it is at rest. When the lever is moved to apply the brake this piece of metal rises above the level of the. platform and comes in contact with a 2 X 4 attached to the underside of the bottom of the cage. The metal piece is attached to springs which permit it to “give” to some extent when it comes in contact with the 2X4. The cage is caused to stop by the friction of this brake after it has passed over the brake several times.

Plaintiff, who was 47 years of age at the time of the casualty, went to Forest Park Highlands on June 9, 1962, with other members of his family. At about 2 p. m., he and his stepson decided to ride the Flying Cages. Plaintiff testified that after they entered the cage the operator bolted the door and then gave the cage a shove to get it started; that after trying for a time they were able to get the cage to make a complete, circle; that as it completed its third circle the operator, without warning, applied the brake just as the cage was over the brake platform; that he was then standing with his feet braced on each side of the cage with one hand holding to the bar at the rear of the cage and the other hand holding the bar at the front thereof; that when the brake was applied he felt “a terrible jolt * * * and it threw me over in the air and I let go of my right hand” and fell to the floor of the cage. The operator then grabbed the cage and stopped it and he (plaintiff) was removed from the cage onto a stretcher and taken to the first-aid station where a splint was applied to his right leg. He was then taken by ambulance to Deaconess Hospital.

Plaintiff’s testimony was corroborated in all material respects by the testimony of his stepson, Ronald Michael, then 21 years of age.

Plaintiff read in evidence the deposition of Clifton Jollif, the operator of the cage at the time he was injured. Jollif testified that he was operating the cages alone at the time plaintiff was injured; that there was a large crowd and he was very busy; that when he was not too busy he would explain the ride to the customers at the time they entered the cage; that he would later give a warning to them before he applied the brake and would tell them to hold onto the bars because he was going to stop the cage. He stated that when he was real busy he “didn’t say much to the customers”; that on this occasion he didn’t warn plaintiff before applying the brake; that the brake was applied when the cage was immediately over the brake platform which caused a “little bit more of a jolt.” On cross-examination he admitted that shortly after the occurrence he gave a statement to Mr. Mortarano (apparently representing defendant) which was taken down by a reporter on a steno-type machine. He admitted that he stated in that statement that before he put the brake on he told plaintiff to stand still and hang onto the cage. He testified further, however, that that statement was not true and was given because he was fearful of losing his job if he told the truth. This witness testified that he was discharged a few weeks thereafter.

Wendell Emerick, who was Superintendent of Forest Park Highlands, testified for defendant and stated that Mr. Jollif and other operators of the Flying Cages were instructed to warn customers to hold onto the bars before they applied the brake. He stated that he was standing nearby when this accident occurred and that Jollif did warn the plaintiff and his stepson before he applied the brake. There was evidence that slightly more than 1,000 persons rode the cages during the 12-hour period they were in operation on June 9, 1962.

Plaintiff’s case was submitted on the theory that defendant’s operator applied the brake when the cage was at ground level without first warning plaintiff to hold on, and that the brake application caused an unexpected jolt or jar as the result of which plaintiff fell and was injured, etc.

Defendant has briefed the contention that plaintiff did not make a submissible case because there was no credible evidence which would sustain plaintiff’s theory as submitted to the jury in his verdict-directing instruction. That contention is obviously without merit. Plaintiff, his stepson, and Jollif all testified that there was no warning to plaintiff before the brake was applied. It is true that Jollif admitted giving an earlier statement to the contrary but testified that the facts as stated in that statement were not true. While that admission would have a bearing upon the weight and credit to be given to Jollif’s testimony, the jury, nevertheless, could believe his testimony if it so desired. We rule this contention adversely to defendant.

The main contentions of defendant upon this appeal relate to the extent of the injuries sustained by plaintiff and the alleged excessiveness of the verdict. It should be stated at the outset that (although he had a fracture of the right ankle) the principal disabling and apparently permanent condition from which plaintiff suffered was a circulatory condition which existed in both of his legs. Plaintiff endeavored to prove that the injuries he received, as heretofore described, caused, or at least aggravated, the circulatory condition. Defendant, on the other hand, contended at the trial, and here contends, that there is no substantial evidence to support a finding that the casualty heretofore described was a proximate cause of the difficulty with plaintiff’s circulation, or that it aggravated a pre-existing condition he may have had in that regard. We will accordingly state the evidence relating to plaintiff’s injuries in some detail.

Plaintiff testified that when he arrived at Deaconess Hospital he “immediately started having cramps” in his left leg; that they “were so severe my wife asked the doctor if he could do something for my leg * * * so the doctor had the nurse give me a shot”; that after being discharged from the hospital he spent six weeks at home, either in bed or in a wheelchair; that he was walking with a cane when he returned to work the latter part of August; that he was an outside salesman of veterinary supplies for the Dr. LeGear Company and prior to his injury had earned from $700 to $800 per month in salary and commission; that he lost $2,000 in salary and commission during the time he was unable to work because of the injury; that in this work he was required to drive 200 to 300 miles per day; that he had difficulty working because he got cramps in both legs; that he earned $100 per month less than he did prior to the accident and finally quit his job in January 1963 because he had no circulation in either leg and couldn’t walk more than two blocks at a time; that he then went to work for “Midwest Vets Supply” and worked 31/S months at $500 per month but, because of the pain in his legs and his inability to walk, he quit that job and had been unemployed from that time until the trial in November 1963.

Plaintiff further testified that his right ankle was still stiff and swollen and that his ankle turns; “seems like it turns in on me”; that he still has cramps in the calves of both legs and if he walks as much as two or three blocks the calves of his legs “knot up on me” and he has to stand for five or ten minutes before he can go ahead; that he had never had any trouble or disability with his legs before the injury.

Plaintiff was treated at Deaconess Hospital by Dr. Ernest Schaper and his associate, Dr. Macon. Dr. Schaper testified that he found fractures of the tibia, fibula, and astragalus in the right ankle; that the general diagnosis was a “dislocation fracture of the ankle”; that the fractures were reduced and a cast applied to the entire right leg; that plaintiff was then admitted to the hospital where he remained for four days, during which time he was taught to walk with crutches; that there was nothing on the hospital record in regard to any difficulty with .the left leg; that the record of the clinic indicated that the first complaint concerning the left leg was on July 2, 1962; that there appeared to be inadequate circulation in that leg and they prescribed a drug to dilate the blood vessels in an effort to increase the circulation. When this witness was asked to give an opinion as to the cause of the circulatory condition he indicated that he could not do so because he had not seen plaintiff at the time that condition was treated. In that connection he stated that the records did not indicate any opinion of Dr. Macon concerning the cause of that condition; that Dr. Macon removed the cast from plaintiff’s leg on July 28, 1962, and that neither of them had seen plaintiff thereafter.

Dr. William A. Stephens, an orthopedic surgeon, testified that he examined plaintiff on July 11, 1962, March 23, 1963, and October 23, 1963. After describing these examinations in detail Dr. Stephens expressed the opinion that as a result of the fracture of the right ankle, plaintiff had a permanent partial disability of the right lower leg, at the ankle, of about one-third; that he might have some residual pain in that area; that plaintiff “has impaired peripheral-vascular disease of both lower extremities, the condition being slightly more severe on the left side. This condition probably existed prior to this accident although the exact cause of the condition is not known at this time.” He also testified as follows: “Q. The circulatory condition is one which normally, in a situation of this kind, wouldn’t result directly from trauma; in other words, he had the condition before? A. Yes, I think the inherent condition was present before. It might be momentarily aggravated by trauma in this way. * * * Q. In other words, it is your opinion that this circulatory condition would at least return to what it was before the accident? A. Yes, you would expect it to by this time. Q. In other words, this condition was there long before the accident? A. I think so.”

Dr. Willard B. Walker, a specialist in vascular surgery, also testified for plaintiff. He stated that he examined plaintiff on September 17, and again on October 19, 1963, and limited his examination to the circulatory problem. Plaintiff sought to show by this witness that the injury aggravated the circulatory difficulty. However, plaintiff failed in that regard because Dr. Walker did not express an opinion that the trauma either caused or aggravated that condition. He did state that “when trauma is sustained the coagulation potential of the blood increases.” However, he did not go further and express any opinion that the increase of the coagulation potential at the time of the trauma actually impaired plaintiff’s circulation either temporarily or permanently.

Plaintiff proved reasonable medical expenses as follows: Deaconess Hospital $157; Drs. Schaper and Macon $179; Dr. Stephens $100; Dr. Walker $45; wheelchair rental $19.87; and cost of medicine $15.

Plaintiff, at the request of defendant, was examined by Dr. Robert E. Funsch, on May 13, 1963. Dr. Funsch, in his testimony, described the examination in detail and stated his conclusions as follows: “Q. Do you have any medical opinion, Doctor, as to whether or not Mr. Statler had a good or bad result in the healing of these fractures ? A. He has good result in the healing of these fractures. Q. Can you tell me, from your examination' and the X-rays, whether or not the fractures have healed in good alignment? A. They have healed in good alignment. Q. Is there any deformity in this foot at all? A. No, sir. Q. Do you have any opinion as to whether or not he will have any great difficulty in walking or getting about with the leg? A. He will not have great difficulty. He will have some degree of difficulty, primarily fatigue, but he will not have any serious difficulty with this ankle.” He also stated that he found an arterial insufficiency in the left leg but none in the right leg, and “there is no reason to suspect or believe that this condition is in any way associated with his injury, or that it has become aggravated by his injury.”

Before considering the other points briefed by defendant we deem it advisable to decide the issue as to whether the circulatory condition (which apparently caused plaintiff to become permanently disabled insofar as any substantial use of his legs is concerned) was caused or substantially aggravated by the casualty. There was no medical testimony to the effect that the circulatory difficulty resulted from the trauma and none which would indicate that it aggravated (except “momentarily”) the condition. Plaintiff did testify that he had had no trouble with his legs before the accident and experienced cramps in his left leg immediately thereafter. However, in view of all the medical testimony and the nature of the ailment, we do not think that testimony would constitute substantial evidence which would reasonably support a finding that the permanent circulatory condition resulted from the casualty. As one of plaintiff’s physicians said, “there is a first time for everything,” and it would appear to be a coincidence that he first experienced pain in his left leg shortly after the accident. We accordingly rule that plaintiff’s circulatory disability is not to be considered in determining the issue as to whether the judgment is excessive.

Defendant contends • that the court committed prejudicial error in refusing to give its requested Instruction “A” which would have withdrawn from the consideration of the jury the issue relating to plaintiff’s circulatory condition. That instruction reads as follows: “The court instructs the jury that if you find and believe from the evidence the issues herein joined in favor of the plaintiff and against the defendant, then in assessing plaintiff’s damages, if any, you shall not consider any damage which plaintiff claims to have sustained to the left leg or the right leg, arising out of, or on account of any damage to the circulatory veins, arteries, blood vessels, and functions thereof, as such claim is not an issue in this case and is withdrawn from your consideration.”

It has been said that the giving of “withdrawal instructions is a matter for the sound discretion of the court, and unless such discretion is abused, there is no ground to complain.” Atchison v. Weakley, 350 Mo. 1092, 169 S.W.2d 914, 917. The rule more specifically applicable here is that “a trial court will not be convicted of reversible error for failure to give an instruction, unless the instruction is substantially correct, some authorities say strictly and entirely accurate.” Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S.W.2d 707, 711.

If Instruction “A” had been limited to the left leg, or if it had been worded so that it would have withdrawn from consideration the circulatory condition of both legs, which continued to exist after the fracture of the right ankle had healed, it would probably have been a proper instruction. But the instruction offered directed the jury not to consider any damage sustained to plaintiff’s right leg “on account of any damage to the circulatory veins, arteries, blood vessels, and functions thereof.” That direction caused the instruction to be erroneous. The evidence is undisputed that there was a dislocation fracture of three bones of the ankle, accompanied by considerable swelling. That and other evidence would reasonably support a finding that there was at least temporary damage and injury to the blood vessels in the area of the right ankle. The plaintiff was entitled to recover damages for the injury to those blood vessels and yet, if the instruction had been given, the jury would have been told not to consider it. We rule that the court did not err in refusing to give Instruction “A”.

Defendant’s final contention is that the verdict of $22,500 is excessive and resulted from the fact that the jury was influenced by the vast amount of testimony relating to plaintiff’s circulatory disease which had no causal connection with the injuries sustained on June 9, 1962. We have no way of knowing the extent, if any, that the jury was influenced by the evidence mentioned. We will, however, consider the issue of ex-cessiveness and in so doing will limit our consideration to the evidence relating to the injuries to plaintiff’s ankle and the extent of disability resulting therefrom. In our determination of that question we will consider the evidence in the light most favorable to plaintiff. “There is no precise method for determining the maximum award which the evidence in this case will support. Each case must be considered upon its own peculiar facts. Due regard should be given to the purchasing power of the dollar [and] to the rule of reasonable uniformity of awards for similar injuries * * Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120, 127.

We have heretofore stated the evidence in some detail. Plaintiff’s special damages would not exceed $3,000. At trial time he had some pain and stiffness in his right ankle. Dr. Stephens was of the opinion that he had a 331/3% permanent partial disability of that ankle. However, had it not been for his circulatory difficulty, we think it reasonable to conclude that plaintiff could have continued to carry on his work as a traveling salesman.

A careful consideration of the evidence has caused us to conclude that the verdict is excessive by at least $6,500. The case of Bowyer v. Te-Co, Inc., Mo.Sup., 310 S.W.2d 892, supports our conclusion. In that case the plaintiff sustained similar but more extensive injuries than those sustained by the instant plaintiff. We there held that a $20,000 verdict was excessive to the extent of $8,000. The plaintiff in the case at bar, however, is seven years younger than the plaintiff in Bowyer and we therefore consider that the amount he may be permitted to recover could reasonably be fixed at a larger sum than that approved in Bowyer.

If, within fifteen days after the filing of this opinion, plaintiff will enter here a re-mittitur of $6,500, the judgment will stand affirmed in the sum of $16,000 as of the date of the original judgment. Otherwise, the judgment will be reversed and the cause remanded for a new trial.

All concur.


author: PRITCHARD, Commissioner.

text:
    Mildred L. ZIEGLER, Appellant, v. Edward F. ELMS and Marie E. Elms, Respondents.
    No. 50414.
    Supreme Court of Missouri, Division No. 2.
    March 8, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied April 12, 1965.
    Stemmier & Stemmier, St. Louis, for appellant.
    Heege & Heege, Clayton, for respondents.
   PRITCHARD, Commissioner.

The parties are in agreement that plaintiff, sister-in-law of defendants, was a social guest, and was a licensee, for whose injuries defendants, as owners and occupiers of their private residence, were liable only for “wantonness or some form of intentional wrong or active negligence.” Wolfson v. Chelist, Mo., 284 S.W.2d 447, 448 [2-4].

Plaintiff was injured when she fell down a stairway leading from defendants’ kitchen. The stairway led first to a landing (which led through a doorway to a patio) thence to a basement rathskeller. There were three steps on the stairway, and plaintiff caught the heel of her shoe on a metal molding strip or “nose” which was attached to the second step from the top. She alleged as negligence (1) That defendants negligently installed and constructed' the metal nosing in such manner that it would recurringly become loose and the edge thereby raised, thereby resulting in an unsafe and dangerous condition; (2) That defendants used a negligent method of tightening said strip on the occasions when it became loose; and (3) That defendants, although fully apprised of the constantly recurring unsafe and dangerous condition, failed to warn plaintiff thereof.

At the close of all the evidence the court directed a verdict against plaintiff and in favor of defendants on her $25,000 action for personal injuries and entered judgment against plaintiff thereon. The argument of plaintiff on this appeal is first that she made a submissible case upon the theory of defendants’ active negligence. The evidence stated favorably to plaintiff is as follows:

Previous to about 1949, the tread on the stairway steps was wood. About that year, Mr. Elms personally installed tile on the horizontal surface of the step. He installed also an aluminum strip on the edge of the stair tread. This strip was “L” shaped, the shorter part, inch, resting horizontally on the top part of the linoleum or tile, and the longer part, % inch, extending downward at the edge of and for the thickness of the tread. The strip was fastened tc the edge of the tread by nails or brads which were driven into the vertical position of the strip midway between the top and bottom thereof and at about 4 inch intervals. There were no nails driven in on the top of the strip, and no screws were used in connection with the installation. The aluminum strip ran the entire width of the stairway, which was 37 or 3?i/£ inches between the walls.

The strip of metal had been on the stair tread from the time of installation, around 1949, until the day of the accident, October 5, 1958. Two or three times each year Mr. Elms would tap in the protruding nails (which were the same as originally installed) on the stair tread to keep the aluminum strip tight on the step. He would do this only if he saw any nails which were loose just when he looked at them as he went up and down the stairway. He testified that it would naturally follow if the nails were loose that the aluminum strip would protrude somewhat out from the tread or the tile. The nails would not come loose in any particular portion of the step and Mr. Elms would cover the entire area in tapping them back into place with the hammer.

On the date of her injury, plaintiff was upstairs in defendants’ home. Mr. Elms and plaintiff’s husband were also upstairs watching a baseball game. Mrs. Elms was in the basement doing laundry. Plaintiff started down the steps to the basement to see if she could help and to tell Mrs. Elms she was going to use the telephone. As she started down the stairs, walking in the center of the step, she looked down in a normal manner and did not notice anything unusual about the steps. On the second step her left heel got caught on the metal edge of the step, and she fell to the halfway landing thus receiving her injuries. After she fell she could see the step and the metal strip was loose (but not hanging) and the nails were extending out a little way. Mr. Elms also testified that the nails were protruding and the strip of aluminum was loosened after plaintiff’s fall. After the accident Mr. Elms got his hammer and hammered the nails in on the step. Prior to the accident defendants mentioned nothing about the step to plaintiff. She was accustomed io using the steps in going to the rathskeller and to the patio and yard area, and she never did notice anything unusual about the steps.

Plaintiff’s argument in support of her premise that she made a case of active neg-iigence against defendants is that a prior faulty erection or construction coupled with a failure to warn can be a sufficient affirmative act of negligence. There is no evidence in this case that defendants initially installed the aluminum stair molding or nosing in a manner not amounting to due care, that the materials were in any way defective, or that the materials used were in any way unfit or unsuitable for the purposes for which they were used. Although Mr. Elms installed the strips himself, there was no evidence that he did so in an improper manner. Although when the strips were installed nails were used to secure the strip to the stair step, there was no evidence that they were not suitable, or that screws (which were not used) would have been any more suitable than nails for this purpose. It is mere surmise and speculation on the part of plaintiff in her brief (and would have been so on the part of the jury) that screws would have held the strip tighter to the step than the nails over the years when the steps were in constant use. There was no evidence that the strip would have come loose and the nails would have come out if they had been put in from the top of the tread. The only evidence on the use of the nails came from defendant, Mr. Elms, that the nails were furnished with the strip of aluminum (made for use on a stair tread) for installation. Plaintiff’s first pleaded assignment of negligence in installing and constructing the metal nosing in such manner that it would recurringly become loose and the edge thereby raised is not supported by the evidence, and she therefore failed to make a case upon that ground.

Even if it were so, however, that defendants did negligently install the stair tread strip, in the absence of an ultra-hazardous condition inherent therein, plaintiff could not recover. Being a social guest, she took the premises as she found them. Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 822 [2, 3], quoting Glaser v. Rothschild (Banc), 221 Mo. 180, 120 S.W. 1, 22 L.R.A.,N.S., 1045; Anderson v. Cinnamon (Banc), 365 Mo. 304, 282 S.W.2d 445, 447 [3, 4], 55 A.L.R.2d 516; Wolfson v. Chelist, supra (Mo.App., 278 S.W.2d 39, loc. cit. 44 [9, 10]). In this case no ultra-hazardous condition at the time of the initial construction is shown by the evidence. There is merely evidence that the nails along the strip of aluminum came loose two or three times a year which caused Mr. Elms to tap them back into place. This is no hidden pitfall or trap, nor is there a new creation of a hazard or danger on the staircase, which had been continuously used by plaintiff, which could render defendants liable to plaintiff under these cases cited and quoted (notably De Tarr v. Ferd. Heim Brewing Co., 62 Kan. 188, 61 P. 689) in Henry v. Disbrow Mining Co., 144 Mo.App. 350, 128 S.W. 841, 844.

Inasmuch as there was no initial hidden peril, known to defendants but not to plaintiff, for which defendants would bé liable, as we have held, there was no duty of defendants to warn plaintiff. In Anderson v. Cinnamon, supra, loc. cit. 282 S.W.2d 448 [7], this court said, “We have never held there is a duty to warn licensees of structural conditions, due to age and natural deterioration or to improper construction, or to warn of conditions due to casual negligence of persons with respect to objects or materials not inherently dangerous even in attractive nuisance cases. See Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623; Emery v. Thompson, 347 Mo. 494, 148 S.W.2d 479.”

The condition of the stair tread aluminum strip here is only that of faulty maintenance, or a failure to repair. There is no direct evidence that in tapping or hammering the nails or brads back into the same holes of the stair tread as they were originally driven would make the condition thereof worse. Even if it Could be properly inferred that Mr. Elms knew that his act in so driving the nails back into the same holes would lessen the effect of the nails in holding the strip to the tread, and the security of the strip to the tread would be weakened, we deem that such would be an ordinary fault or omission (not an ultra-hazardous condition) which a guest should accept and the risk of which he should assume. Wolfson v. Chelist, supra, loc. cit. 284 S.W.2d 450. Plaintiff freely acknowledges that a failure to make repairs is passive negligence, for which defendants would not be liable. In her brief, however, plaintiff argues that this court is leaning toward the view in Sec. 342, Rest. Torts, that “A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he (a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and (b) invites or permits them to enter or remain upon the land, without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to warn them of the condition and the risk involved therein.” As is apparent from the phraseology of said Sec. 342, the matter of a licensee taking the premises of his licensor as he finds them (Wolfson v. Chelist, supra) would no longer be the law if Sec. 342 were adopted in this state. It is for this reason that Missouri courts have not adopted the restatement rule with respect to licensees. See Stevenson v. Kansas City Southern Ry. Co., 348 Mo. 1216, 159 S.W.2d 260, 263; and Porchey v. Kelling, supra, loc. cit. 185 S.W.2d 823 [4], and cases there cited. Plaintiff cites McVicar v. W. R. Arthur & Company, Mo., 312 S.W.2d 805, 65 A.L.R.2d 785, in support of this argument. That was a trespasser case and the plaintiff was injured when he leaned into a trailer when the driver of a tractor was attaching thereto and had not discovered plaintiff in a position of peril, hence he was not permitted to recover as a matter of law. The court there announced no new rule in this state but merely commented upon and discussed the rules in some jurisdictions with respect to trespassers (loc. cit. 312 S.W.2d 814 [10-14]). The recent case of Bartels v. Continental Oil Co., Mo., 384 S.W.2d 667, is of no aid to plaintiff in this argument because it was there unnecessary to discuss the status of the plaintiffs’ decedent. By reason of the pronouncements in the Stevenson and Porchey cases, supra, neither overruled, it is still the law in this state that a licensee takes the premises of his licensor as he finds them (absent evidence of an ultrahazardous condition, pitfall or trap of which the licensor has knowledge but the licensee does not), and therefore the restatement rule (§ 342, supra) is inapplicable.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: FINCH, Judge.

text:
    William BRACKETT et al., Appellants (Plaintiffs), v. EASTON BOOT AND SHOE COMPANY et al., Respondents (Defendants).
    No. 50332.
    Supreme Court of Missouri, Division No. 2.
    March 8, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 12, 1965.

      Paul J. Simon, Floyd McBride, Thomas F. McGuire, St. Louis, for appellants.
    William M. Howard, Thomas C. Walsh, St. Louis, Bryan, Cave, McPheeters & Mc-Roberts, St. Louis, of counsel, for respondents.
   FINCH, Judge.

This is a class action in which alleged rights to pro rata accrued vacation pay, pay for a holiday, and other asserted rights are sought. The trial court entered judgment for defendants. A timely motion for new trial was filed and overruled, and the appeal came to this court on the basis that plaintiffs sought recovery in excess of $15,000 in accrued vacation and holiday pay.

The plaintiffs are six individuals who sue on behalf of themselves and others similarly situated. Three of the plaintiffs are officers and representatives of Local No. 7 of the United Shoe Workers of America AFL-CIO (hereinafter referred to as Local No. 7) and the other three are members of Local No. 7 and were employees of Easton Boot and Shoe Company (hereinafter referred to as Easton). One of the officers of Local No. 7 was also an employee. The other two did not testify and the record does not indicate whether or not they also were employees of Easton.

The suit was against Easton and Hamilton Shoe Company (hereinafter referred to as Hamilton). The petition sought a declaratory judgment that defendant companies had certain contractual obligations under a collective bargaining agreement to provide employment or reemployment, that they should be held to owe certain monetary amounts for vacation and holiday pay to each plaintiff and those similarly situated, and that they should be held liable for compensatory damages to Local No. 7 as lost union dues and other damages. At the conclusion of all the evidence the court found against the plaintiffs and entered judgment in favor of both defendants.

Plaintiffs brief and argue only two points for reversal of the judgment, to wit: (1) Plaintiffs and those similarly situated were entitled to judgment for accumulated vacation pay on a pro rata basis for a period from April 1, 1961, to August 31, 1961, the date of liquidation of Easton; and (2) Plaintiffs and those similarly situated were entitled to holiday pay for Labor Day, 1961. The other issues in the trial below and which have not been briefed are waived. Ayres v. Keith, Mo., 355 S.W.2d 914, 919. In this opinion we shall relate only the evidence which relates to the two points briefed and which is necessary to a determination thereof.

Defendant Easton was a corporation engaged in manufacturing shoes in the City of St. Louis. Local No. 7 was a labor union and was the duly certified bargaining agent for production employees of defendant Easton. A written labor agreement between Easton and Local No. 7 dated March 25, 1959, covered a period from December 15, 1959, through December 31, 1960, and a written supplemental agreement was executed extending the agreement for a period expiring December 31, 1962.

Easton was a wholly owned subsidiary corporation of Hamilton, which also manufactured shoes in St. Louis. Easton manufactured a particular type of shoe and did so under contract exclusively for Hamilton, as did another wholly owned subsidiary of Hamilton at De Soto, Missouri. For a time Easton operated on a profitable basis but in 1960 and 1961 the demand for shoes of the type manufactured by Easton declined sharply and Easton suffered substantial losses. The decision was reached that the operation of one of the three companies would be discontinued. For reasons not material to this decision, it was concluded that the De Soto plant would not be closed. Discussions followed as to whether the Easton plant should be closed and its operations moved into the Hamilton plant, or vice versa. Each company had a different union and discussions were conducted with representatives of both unions. On August 29, 1961, after these discussions had been concluded, the decision was made that the operations of Easton would be terminated on August 31, 1961, and it would be liquidated and its assets transferred to Hamilton, which would assume its liabilities. Local No. 7 and employees of Easton were notified by letter and by notice on the bulletin board of this decision and employees were told that their employment terminated August 31, 1961. Under the arrangements any laid-off employees of Hamilton were entitled to recall, after which Easton employees could be employed as new employees by Hamilton. (Some were so employed later, but this phase of the arrangement is not material to a decision of this appeal.)

Subsequent to the shutdown of Easton on August 31, 1961, officers of the union and a committee of employees met with representatives of Easton and Hamilton asserting claims to reemployment rights, severance pay, pro rata vacation pay for the period from April 1, 1961, to August 31, 1961, and holiday pay for Labor Day, 1961. There also were certain contentions about some arbitrations of other matters. Company representatives disagreed and this suit followed.

The labor agreement contained an arbitration clause providing for arbitration of disputes upon written request of either party. Apparently representatives of Local No. 7 verbally discussed arbitration of these matters with company representatives, but the latter expressed disagreement therewith and it does not appear that any written request was made. Both plaintiffs and defendants agree that the arbitration provisions of the contract are not involved.

The first point briefed and argued by appellants is that plaintiffs, and others similarly situated, were entitled to accumulated vacation pay on a pro rata basis for the period from April 1, 1961, until the date of liquidation of Easton on August 31, 1961, and that judgment should have been entered accordingly. Appellants’ brief states that: “ * * * the rights of the employees to vacation pay are to be measured by the provisions of the contract,” but their brief does not discuss or analyze any of the various sections of Article XIV (the portion of the contract which dealt exclusively with vacations and vacation pay). Instead, appellants argue generally that collective bargaining contracts are to be construed with the liberality necessary to accomplish their evident purpose, that vacation pay is in effect additional wages or earnings, the right to which accrues as the employee works, and that if the employer terminates his employment before the date on which the employee would be entitled to the full vacation pay, he is entitled in right and justice to a pro rata portion of such vacation pay, calculated to the time of such termination.

The pertinent provisions of the labor agreement between Easton and Local No. 7 dealing with vacations were as follows:

“ARTICLE XIV
“VACATIONS
“Section 1. Subject to the conditions hereinafter set forth, which are conditions precedent, each employee of the EMPLOYER, represented by said UNION, who is paid on an hourly or piece work basis, shall be entitled to three weeks’ vacation with pay in the year 1959 and in each succeeding calendar year, provided that each such employee:
“1. Has been in the continuous service of the EMPLOYER during the fifteen-year qualifying period, which shall consist of the continuous period from April 1, 1944, to March 31, 1959, both inclusive, with respect to the year 1959, and the fifteen year period ending March 31 of each succeeding year with respect to such succeeding years; and,
“2. Has actually performed all work required of such employee by the EMPLOYER during each of the twenty-six (26) different calendar weeks during the period from April 1, 1958, through March 31, 1959, with respect to the year 1959, and during the twelve month period ending March 31, of each succeeding year with respect to such succeeding year.
“Section 2. Subject to the conditions hereinafter set forth, which are conditions precedent, each employee of the EMPLOYER, represented by said UNION, who is unable to qualify under Section 1 hereinabove set forth, shall be entitled to vacation pay equal to six (6%) percent of his straight time earnings during the period from April 1, 1958, through March 31, 1959, with respect to the year 1959, and during the twelve month period ending March 31, of each succeeding year with respect to such succeeding year, provided that such employee:
“1. Has been in the continuous service of the EMPLOYER during the fifteen-year qualifying period, which shall consist of the continuous period from April 1, 1944, to March 31, 1959, both inclusive, with respect to the year 1959, and the fifteen year period ending March 31 of each succeeding year with respect to such succeeding year; and,
“2. Has actually performed all work required of such employee by the EMPLOYER during each of the thirteen (13) different calendar weeks during the period from April 1, 1958, thru March 31, 1959, with respect to the year 1959, and during the twelve month period ending March 31 of each succeeding year with respect to such succeeding year.
(Sections 3 and 5 are the same as Section 1 except that they provide for periods of continuous service of five years and one year, respectively, and for vacations with pay of two weeks and one week, respectively. Sections 4 and 6 are the same as Section 2 except that they provide for periods of continuous service of five years and one year, respectively, and for vacation pay of 4% and 2%, respectively, instead of 6%.)
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“Section 9. Payments for vacation will be made by separate check at the time the vacation is taken. Vacation pay due under Sections 1, 3, and 5 hereinabove set forth will be computed for regular hourly workers at the rate in effect for each such eligible worker at the time payment is to be made, and a week’s pay will be calculated at forty (40) times such straight time hourly rate of such worker. Vacation pay due under Sections 1, 3, and 5 herein-above set forth will be computed for each eligible piece worker at his average straight time hourly rate during the quarter ending March 31, preceding the vacation period, and a week's pay will be calculated at forty (40) times such average straight time hourly rate for each such eligible piece worker.
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“Section 12. Any employee whose employment is terminated on or after June 1, 1958, or June 1, 1959, and on or before March 31 of the year following such respective June 1, who at the time of such termination of employment is entitled to receive a pension under the Pension Plan between the parties dated December 9, 1957, shall be entitled to such prorata vacation pay, if any, that he may be entitled to receive for the vacation year beginning the May 1 immediately prior to the termination of his employment by computing on an annualized basis both the qualifications necessary to determine whether such employee is entitled to vacation benefits and if so, the amount of vacation pay to which such employee is entitled. Such amount of vacation pay, if any, to which such employee shall be entitled shall be paid by the Company to such employee on or before the May 30 following the termination of his or her employment.
“Section 13. An employee who enters Military Service during the period from April 1, 1958 to March 31, 1959 or during any twelve month period thereafter, beginning with a succeeding April 1st while this Agreement is in effect, and who has fulfilled all of the requirements other than that of continuous service required in this ARTICLE, to be necessary to entitle such employee to vacation benefits hereunder, will be entitled to receive a cash payment to the extent of the vacation benefits to which he is so entitled, provided, however, that if such employee at the time he enters Military Service has fulfilled all such requirements as aforesaid except that he did not work the minimum number of hours required to earn vacation benefits but has worked at least two hundred (200) hours during the qualifying period, then such employee will be entitled to a cash payment equal to one-half of the vacation benefit he would have been entitled to receive if he had worked the minimum number of hours required to earn vacation benefits. Such payment will be made at the time of his induction into such Military Service.
“Upon return to the employment of the Company within ninety (90) days after such employee has left such Military Service, such employee who, during the period beginning the April 1st and ending the succeeding March 31st which includes the date that such employee returns to the employ of the EMPLOYER, fulfills all requirements for vacation benefits hereunder for such period except as to the hours required to be worked, but who remains in the continuous service of the Company for the remainder of the twelve (12) months qualifying period during which he returns to work and who works not less than two hundred (200) hours during such twelve (12) month’s period, will be entitled to vacation pay benefits which such employee would have been entitled to receive had he worked the minimum numbers of hours required to have been worked by him under the provisions of this ARTICLE to receive vacation benefits.”

The right to vacation pay is a contractual right and we look to the provisions of the contract which the parties have made. Sections 1, 3, and 5 of Article XIV provided for paid vacations of three weeks, two weeks, and one week, respectively, depending on the length of continuous service, plus performance of a certain minimum amount of work during the year. Section 2, 4, and 6 of Article XIV provided for vacation pay in certain instances where the employee met the requirement of continuous length of service but the amount of work performed during the year met a lesser minimum standard. In each and every one of these six sections the beginning line read: “Subject to the conditions hereinafter set forth, which are conditions precedent * * (Italics ours.) Thereafter in subparagraph 1 of Section 1 the following condition precedent was specified: “Has been in the continuous service of the EMPLOYER during the fifteen-year qualifying period, which shall consist of the continuous period from April 1, 1944, to March 31, 1959, both inclusive, with respect to the year 1959, and the fifteen year period ending March 31 of each succeeding year with respect to such succeeding years.” Similar language appeared in each of the Sections, 2 through 6, except for changes in Sections 3 and 4 from a fifteen-year period of continuous service to a five-year period, and in Sections 5 and 6 to a one-year period.

The language in these sections clearly and unequivocally provides that the employee must have been in the service of Easton for the entire applicable qualifying period through March 31 of the year in which the paid vacation is to be taken or the vacation pay is to be received. The sections all state that compliance with such requirement is a condition precedent to qualification by the employee. Appellants herein are bound by these contractual provisions. A collective bargaining agreement is subject to the same rules of interpretation as other contracts and is to be construed so as to accomplish its evident aims. Irwin v. St. Louis Globe-Democrat Publishing Company, Mo., 368 S.W.2d 452, 455; 56 C.J.S. Master and Servant § 28 (41) a.

It is obvious that Sections 1 through 6 of Article XIV do not provide expressly for either paid vacations or vacation pay on a pro rata basis. If provision therefor is to be found, it can only be by implication as a result of the construction of the language of the sections. In interpreting the contract we must be guided by the well-established rules that we cannot make contracts for the parties or insert provisions by judicial interpretation. We are to determine what the parties intended by what they said, and we cannot be concerned with what they might have said, or with what they perhaps should have said. Monterosso v. St. Louis Globe-Democrat Publishing Company, Mo., 368 S.W.2d 481, 487; Allen v. St. Louis Globe-Democrat Publishing Company, Mo., 368 S.W.2d 460, 467.

In determining the meaning of Sections 1 through 6 of Article XIV it is proper to look to any other clauses of the contract which might shed light on the intention of the parties. A cardinal rule of construction of a contract is that the court should look to the entire instrument and consider it as a whole. In re Collins’ Trust Estate, 354 Mo. 614, 190 S.W.2d 259, 262. In so doing we observe that Section 12 of Article XIV provides that if an employee is entitled to a pension under the company pension plan, and his employment is terminated, he shall be entitled to pro rata vacation pay. This provision shows that the parties in their negotiations were aware of the subject of pro rata vacation pay and specifically provided therefor in the situation where it was intended that the one terminated should receive pro rata vacation pay. If, as appellants contend, vacation pay accrues as additional wages and an employee terminated is entitled to accrued pro rata vacation pay by reason of such accrual, there would have been no occasion for the drafters of the contract to insert Section 12 in Article XIV. Likewise, Section 13 of Article XIV provides for a modified pro rata vacation plan for persons entering military service. In this instance the pay was fixed arbitrarily at one-half of the vacation benefit, if the employee met certain minimum standards of work. The fact that they did include Sections 12 and 13 shows that the parties did not intend nor understand that the right to pro rata vacation pay would be implied in the absence of an express provision therefor. The express inclusion of those two instances implies the exclusion of all others. The maxim “ex-pressio uníus est exclusio alteráis” is applicable. For all we know, the union may have requested pro rata vacation pay for all during the negotiations and the company may have contended for no pro rata vacation pay at all, and these provisions may have been a compromise. In any event, the presence of Sections 12 and 13 shows an intention to provide specifically for pro rata vacation pay where it was to be received. This same conclusion is strengthened by Section 9 which provides that vacation pay under Sections 1, 3, and 5 shall be based on the average straight time rate of pay for the quarter ending March 31, preceding the vacation period. This shows that it was contemplated that the one entitled to vacation pay would have been working up to March 31st. If pro rata pay was intended for ones laid off earlier in the year (for example, August 31, as in this case), the amount of vacation pay would not and could not be calculated on the average straight time pay of that worker for the quarter ending March 31. The fact that it was to be computed on the basis of that quarter shows that pro rata pay was not intended.

Appellants’ brief recognizes that there are two lines of authority on the question of how to consider the nature of vacation pay and how to treat a specified eligibility date in determining whether an employer is liable for pro rata vacation pay, where the employer in good faith discontinues its business. The case of Livestock Feeds, Inc. v. Local Union No. 1634 of Congress of Industrial Workers, 221 Miss. 492, 73 So.2d 128, cited by appellants, supports their views. In spite of a vacation clause which seems to provide for determination of vacation status as of June 1, the Supreme Court of Mississippi held that if the employment was terminated earlier by the employer, the employee was entitled to a pro rata share of the vacation pay. This conclusion was based on the view that the vacation pay constitutes additional wages and accrues as the employee works during the year. The other line of cases is represented by the case of Treloar v. Steggeman, 333 Mich. 166, 52 N.W.2d 647. In that case the business was operating at a loss and the company shut down in September, which was before the date specified as the qualification date for vacations. Employees sought pro rata vacation pay which was denied. In so holding the court stated (52 N.W.2d 647, 649):

“Plaintiff claims that the agreement should be liberally construed in his favor. The agreement clearly prescribes a condition precedent to vacation pay that the employee shall be on the seniority list on December 1, 1947, as well as having completed at least 6 months work since December 1, 1946. The two conditions precedent are clearly stated and there is no doubtful meaning to be resolved in plaintiff’s favor. We must apply the clear provisions of the agreement as we find them. It was competent for the parties to fix and agree upon December 1, 1947 as the eligibility date and it is not for the court to advance the eligibility date to suit the convenience or wishes of one party to the agreement. It is not for us to review or redetermine the considerations that led to the fixing of the date as December 1, 1947.
“Plaintiff and his assigns have failed to qualify under the requirements of the agreement and are not entitled to vacation pay.”

It would serve no useful purpose to review the various other cases cited. These two cases represent the respective viewpoints.

This precise question has not been decided previously by the appellate courts in Missouri. In Monterosso v. St. Louis Globe-Democrat Publishing Company, Mo., 368 S.W.2d 481, 488, this court did hold that unpaid vacation pay under a collective bargaining agreement did not constitute unpaid wages within the meaning of Section 290.110, RSMo 1959, V.A.M.S. It is true that said section is a penal section and the test would not necessarily be the same for the purpose of determining the nature of vacation pay in construing this contract on the question of whether pro rata vacation pay was intended. Nevertheless, we have concluded that vacation pay does not constitute unpaid wages for the purpose of establishing a right to pro rata vacation pay in this case. We have pointed out that the contractual provisions specify continuous employment to a specific date as a condition precedent. Other clauses make provision for pro rata vacation pay in specific limited situations only. Vacation pay is not even mentioned in the Article on Wages in the collective bargaining contract. Paid vacation and vacation pay are covered in a separate article and are payable by a separate check. Such vacation pay is not taken into account as a part of wages for the purpose of computing overtime or holiday pay. All of these things lead us to the conclusion that the contract did not provide for pro rata vacation pay in the situation here presented, either expressly or by reasonable interpretation.

The second point briefed and argued by appellants is that plaintiffs and others similarly situated were entitled to holiday pay for Labor Day, 1961. Article XIII provided for certain paid holidays and provided in part as follows:

“Subject to the conditions hereinafter provided, all employees covered hereunder shall receive eight (8) hours’ pay at their respective regular straight time hourly rate for * * * Labor Day * * * and in order to he eligible for such pay employees must meet the following requirements:
“(a) They must have been in the continuous employ of the EMPLOYER at least thirty (30) days prior to the holiday; and
“(b) They must have actually worked both the last scheduled work day of the employee before such holiday and the first scheduled work day of the employee after such holiday * * *.
s[s # # * *
“(d) The scheduled work day of the employee as used herein is the work day designed by the EMPLOYER before and after such holiday and on which the employee is directed by the EMPLOYER to appear and on which work day the employee works the hours required by the EMPLOYER. * * ” (Italics ours.)

It will be noted that said Article made it a condition that the employee work the first scheduled work day after the holiday in question. In this instance, the last scheduled work day was August 31, 1961. That was the day on which the company closed down. Labor Day followed, and there was no scheduled work day after Labor Day. Appellants contend that holiday pay really is compensation or wages and that the company cannot escape liability therefor by liquidating the company with the result that there is no scheduled work day after the holiday in question. It follows from what we have said in denying pro rata vacation pay that the appellants are not entitled to recover for holiday pay. The contract made it a condition precedent that the employee work the first scheduled work day after a holiday to be entitled to pay for that holiday. This condition precedent was not met. The company cannot be held liable therefor on account of not having provided for a scheduled work day after a holiday any more than it is liable for vacation pay on account of not having provided employees an opportunity to work until the vacation eligibility date had arrived.

Respondents assert that appellants did not plead or prove facts necessary to sustain a class action under Rules 52.08 and 52.09, V.A.M.R. In view of our disposition of the points raised on appeal by appellants, it is unnecessary for us to decide this question. The requirements of those rules relative to class actions have been discussed at some length in various cases and should make clear what will be required. Bellerive Country Club v. McVey, 365 Mo. 477, 284 S.W.2d 492; Campbell v. Webb, 363 Mo. 1192, 258 S.W.2d 595; Sheets v. Thomann, Mo.App., 336 S.W.2d 701; Milton Construction & Supply Co. v. Metropolitan St. Louis Sewer District, Mo.App., 308 S.W.2d 769; City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546, and Hribernik v. Reorganized School District R-3, Mo.App., 276 S.W.2d 596.

The judgment is affirmed.

All of the Judges concur.