author: FINCH, Judge.

text:
    STATE of Missouri ex rel. KANSAS CITY TRANSIT, INC., Daniel L. Brenner, M. J. Coen, Charles G. Hanson, A. D. Martin, Sr., William S. Morris, Albert W. Thomson, Edwin B. Wright and G. Kenneth Baum, Relators-Appellants, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Tyre W. Burton, Chairman, E. L. McClintock, William Barton, Frank W. May and Donal D. Guffey, Commissioners, Respondents.
    No. 52022.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1966.

      Albert Thomson, Robert W. Cook, Kansas City, John H. Hendren, Jefferson City, for relators-appellants, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, Hendren & Andrae, Jefferson City, of counsel.
    Wayne W. Waldo, Gen. Counsel, Thomas J. Downey, Sp. Counsel, for respondents.
   FINCH, Judge.

The Public Service Commission of Missouri, following a hearing relative to certain changes which had occurred in the capital structure of Kansas City Transit, Inc., entered this order:

“That Kansas City Transit, Inc., be and it is hereby prohibited from making further reductions in the account entitled ‘Unearned Surplus’ (also designated by the company as ‘Capital Contributed’) by any manner or means whatsoever without the prior authorization of the Commission.”

The above order was affirmed on cer-tiorari by the Circuit Court of Cole County. Relators, Kansas City Transit, Inc., and its officers and stockholders, referred to herein as “Transit,” appealed to the Kansas City Court of Appeals, which reversed, but on its own motion transferred the case to this court pursuant to the Constitution, V.A.M.S., Art. V, § 10, and Civil Rule 84.05(g), V.A.M.R.

Transit’s brief on appeal asserts that:

(1) There was no statutory authorization for the Commission to make the requirement contained in the questioned order; and
(2) The order was unreasonable and not supported by evidence.

An additional contention that the order violated constitutional rights under the Fourteenth Amendment of the Constitution of the United States and § 10 of Art. I of the Constitution of Missouri was raised for the first time on appeal. The issue was not raised in the application for rehearing before the Commission. Section 386.500(2) (all statutory references are to RSMo 1959 and V.A.M.S.) provides that grounds not specifically set forth in the application for rehearing may not be asserted in any court upon review. This court has applied that provision to constitutional questions. State ex rel. Buffum Tel. Co. v. Public Service Commission, 272 Mo. 627, 199 S.W. 962, L.R.A.1918C, 820; State ex rel., to Use of Alton R. Co. v. Public Service Commission, Mo., 100 S.W. 2d 474. We will not consider the constitutional questions.

Transit is a street railway corporation engaged in the operation of a local transit system in the greater Kansas City area. It is subject to the jurisdiction of the Commission.

On May 11, 1961, the Commission, pursuant to § 387.340, authorized and approved a corporate reorganization of Transit. A newly formed corporation, The Sovereign-Western Corporation, herein called “Sovereign,” acquired all of the common stock of Transit. Preferred stock of Transit in the amount of $4,445,000 was cancelled and the holders thereof received new preferred stock of Sovereign in exchange. This relieved Transit of the obligations imposed by the preferred stock. As a part of the reorganization, Transit was permitted to transfer approximately $1,250,000 in non-operating assets to Sovereign. The latter was represented to be planning to engage in diversified activities, thereby increasing the soundness and stability of the operation.

The capital represented by the preferred stock of Transit became capital surplus, referred to in the Commission order as “unearned surplus” and as “capital contributed.” After the reorganization the capitalization of Transit consisted of long-term equipment notes in the amount of $1,000,592 and equity consisting of common stock of $30,000 and unearned or capital surplus of $4,475,734, or a total of $5,-506,326. Current assets of the company were $1,119,660 and current liabilities $1,-160,782. Net operating assets were $5,925-,-708.

The Commission, on February 8, 1962, authorized the Westgate-California Corporation, herein called “Westgate,” to acquire all of the common stock of Transit from Sovereign. This acquisition resulted from an agreement of merger between Sovereign and Western in December 1961. During 1962, Transit paid ordinary dividends of $118 per share or a total of $354,000, but no liquidating dividends were made. Net earnings for 1962 were $282,163.

In February of 1963, Westgate sold all of the common stock of Transit and all the stock of Greater Kansas City Bus Company to seven individuals, for whom Mrs. Alice Wrigley acted as trustee. The sale price was $4,550,000. Notes were given for the entire purchase price. A few days later, on February 20, 1963, pursuant to resolution of its board of directors, Transit effected a reduction in its capital contributed account of $1,554,600 and distributed that amount to the stockholders. They immediately applied it on the notes given for the purchase price. An additional distribution of capital in the amount of $250,000 was authorized by the directors and made on June 20, 1963. It also was applied on the purchase notes given for the Transit and Greater Kansas City Bus stock purchases. At the time of the Commission hearing the only payments which had been made by the seven individuals on the purchase price of the Transit and Greater Kansas City Bus stock were these two liquidating dividends. No approval of these capital reductions and distributions was sought from the Commission, and the latter learned thereof in a rate hearing. As a result, the Commission held a hearing and entered the order from which Transit has appealed.

Was there statutory authority for the Commission to order Transit not to make further capital distributions from its unearned or capital surplus account to stockholders without prior authorization by the Commission ?

We start with the premise that the Commission “is an administrative body of limited jurisdiction, created by statute. It has only such powers as are expressly conferred upon it by the statutes and reasonably incidental thereto. State ex rel. and to Use of Kansas City Power & Light Co. v. Buzard, 350 Mo. 763, 168 S.W.2d 1044.” State ex rel. Harline v. Public Service Commission, Mo.App., 343 S.W.2d 177, 181. Accordingly, we must find the power conferred by statute if it exists at all. In such search, however, we must recognize that the Commission has not only the powers and duties expressly specified but “also all powers necessary or proper to enable it to carry out fully and effectually all the purposes of this chapter.” Section 386.040.

We have concluded, and hold, that the Commission did have statutory authority to make the order in question. Various sections of the statutes indicate a clear intention of the Legislature that the Commission should exercise supervision and control over the capital structure of street railway corporations and other common carriers within its jurisdiction.

The power of a common carrier to issue stocks and bonds (as well as evidences of debt and instruments creating liens) is declared by § 387.240 to be a privilege which is subject to “supervision, regulation, restriction, and control” by the Commission. Further provisions relative to Commission control of the issuance of stock, bonds and other evidences of debt are contained in § 387.270. Under the latter section, the order of the Commission is to specify the uses or purposes to which the issue or proceeds are to be applied, and proceeds are not to be used otherwise except with Commission approval. Under § 387.280, no stock, bond or scrip dividend is to be declared without Commission authorization, and approval is required before the proceeds of any stock, bond or scrip issue may be distributed to stockholders. A merger or consolidation of carriers is permissible only with Commission approval. Section 387.250. Reorganizations are subject to Commission supervision and control and may not occur without authorization. Section 387.340. Under § 386.320 the Commission is charged with keeping itself informed as to the capitalization of a common carrier, as well as with respect to its condition and the adequacy of its operations. These are in addition to the sections which require street railway companies to furnish service and facilities which are reasonable and adequate and authorize the Commission to require such service and facilities. Sections 387.030, 387.210 and 387.220.

These sections provide specifically for supervision and control by the Commission of (1) the amount of stock (and other capitalization) with which a company such as Transit commences operations as a common carrier, (2) subsequent issuance of stock or other items increasing the capitalization, and (3) changes in capitalization resulting from reorganizations or mergers. This supervision is not limited to controlling increases in the capital structure. For example, § 387.340, relating to reorganizations, provides that “[u]pon all such reorganizations the amount of capitalization, including therein all stocks and bonds and other evidence of indebtedness, shall be such as is authorized by the commission,” and that “any reorganization agreement before it becomes effective shall be amended so that the amount of capitalization shall conform to the amount authorized by the commission.” This language indicates an intention that the capital structure after reorganizaion would continue to be that approved by the Commission in the reorganization until such time as the Commission might approve some change therein. If that is not what the quoted portion of the statute means, it simply is stating the obvious, namely, that at the conclusion of the reorganization the capitalization would be that which the Commission had specified in its order of approval. We do not believe the Legislature included this language for such a useless purpose, and we do not attribute to it such a restricted meaning.

Under Transit’s theory, the corporation would be free at any time after the Commission has approved the composition of the capital structure to declare a partial liquidating dividend which would change the capital structure from that which the Commission had approved. If this contention is correct, the right granted to the Commission to determine the capital structure at the inception of operations or when additional capital is provided by issuance of stocks or bonds, or where there is a merger or a reorganization, would be meaningless because immediately thereafter the carrier could nullify the direction of the Commission by making capital distributions to its stockholders without Commission approval. In fact, this is exactly what Transit did by its two liquidating dividends made subsequent to the approval by the Commission of the capital structure of Transit in the reorganization of 1961 and the approval of the transfer of stock following the merger in 1962.

Section 387.280, which prohibits distribution to stockholders of the proceeds of stock, bond or scrip issues unless approved by the Commission, is further evidence that the Legislature intended that the Commission should have a voice in determining whether and when capital dstributions are to be made. In effect, Transit, by its two liquidating dividends in 1963, distributed to stockholders a part of the funds which had been represented by preferred stock and which became available to the corporation as unearned surplus by reason of cancellation of that stock.

It is our view that a reading of the statutes relative to the Public Service Commission, and particularly the sections to which reference is made herein, indicates that it was intended that the Commission should control the capital structure of carriers under its supervision, both as to increases and decreases therein. We also consider that the power to enter the order here in question is to be implied and necessarily is incident to the right conferred expressly on the Commission to approve and supervise the issuance of stock, bonds and other evidence of indebtedness and the right to specify the capital structure in the event of merger or reorganization. Section 386.040 confers on the Commission powers necessary to carry out the purposes of the Act. That would include the right to say, as the Commission did here, that Transit may not reduce its capitalization by distributing unearned surplus to stockholders without Commission approval. This interpretation is in harmony with the viewpoint expressed by this court in earlier cases interpreting this Act. State on inf. Barker ex rel. Kansas City v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. City of Sedalia v. Public Service Commission, 275 Mo. 201, 204 S.W. 497; State ex rel. Missouri Southern R. Co. v. Public Service Commission, 259 Mo. 704, 168 S.W. 1156; State ex rel. City of Carthage v. Public Service Commission, 303 Mo. 505, 260 S.W. 973.

Transit would avoid the above conclusion on the basis that it is organized under Chapter 351 (The General and Business Corporation Law), which specifically authorizes capital distributions to stockholders from unearned surplus under § 351.210. This provision is controlling, says Transit, “in the absence of an express statute prohibiting a public service corporation from declaring and distributing paid-in surplus to its stockholders.”

The fact that Transit was organized under Chapter 351 does not exempt it from the provisions of Chapters 386 and 387, which provide for regulation of street railway companies and other carriers by the Commission. If it did, then Transit could issue additional stock or bonds, or incur indebtedness secured by mortgages, or merge or reorganize, or sell its street railway property, all without Commission approval. Chapter 351 contains provisions permitting corporations thereunder to do all of these things pursuant to proper corporate authorization. However, when Transit operates as a street railway company, it subjects itself to the provisions of Chapters 386 and 387 and the jurisdiction of the Public Service Commission. That restricts, in certain respects, what it might do if it operated solely as a general business corporation organized under Chapter 351. For example, it may not issue its stock, or sell its transportation facilities, or merge or reorganize, or do certain other things unless it obtains Commission approval.

Transit apparently does not assert an unrestricted authority under Chapter 351 to do all things which that chapter permits corporations organized thereunder to do. This is illustrated by the fact that Transit has gone to the Commission for approval of its mergers and reorganizations. The statement in Transit’s brief that § 351.210 authorizes distributions from unearned surplus to stockholders in the absence of an express statute prohibiting such action by a public service corporation, indicates that Transit recognizes that if a section of Chapter 386 or Chapter 387 specifically prohibited such action without Commission approval, such section would govern. Hence, Transit’s position really amounts to a restatement of its contention that there is no express statutory authorization for the order by the Commission, and for that reason § 351.210 governs. We already have recited the reasons why we hold that the Commission does have implied authority under Chapters 386 and 387 to require that reductions in the capital structure of a street railway company, including paid-in surplus, be made only with Commission approval. This does not mean a nullification of the provisions of § 351.210. It means only that the right of Transit to act under that section (as under other provisions of Chapter 351, such as the power to issue stocks or bonds or sell property or merge) is subject to approval by the Commission because of the company’s nature as a public service company.

We agree with the statement in State ex rel. City of St. Joseph v. Public Service Commission, 325 Mo. 209, 30 S.W.2d 8, 14, that “[I]t must be kept in mind that the commission’s authority to regulate does not include the right to dictate the manner in which the company shall conduct its business.” Transit asserts that the order complained of was doing just that. We do not agree. The order does not relate to action by Transit in determining whether to pay a regular dividend out of earnings, or some other purely management prerogative. It is not a question comparable to the determination of who shall be president or counsel of Transit, which was advanced in argument as an analogy. Rather, it involves a change in capital structure of the company, just as much as where there is a merger or reorganization or the issuance of additional stock or bonds. These are areas in which the Legislature has required Commission approval.

Cases from other states are cited by Transit in support of its contention that the statutes did not authorize the Commission to make the order in question. We have reviewed these cases but do not deem it worthwhile to analyze them herein. They interpret statutes of other states, and none have persuaded us to a conclusion different than that herein announced.

Transit’s second contention is that the order of the Commission was unreasonable and not supported by evidence.

The function of the courts in reviewing orders of the Public Service Commission on the issue of reasonableness is to determine whether the order is supported by competent and substantial evidence upon the whole record. Sometimes it is stated that the court is to determine whether the order is arbitrary or capricious or against the overwhelming weight of the evidence. State ex rel. Chicago, Rock Island & Pac. R. Co. v. Public Service Commission, Mo., 312 S.W.2d 791; State ex rel. City of West Plains v. Public Service Commission, Mo., 310 S.W.2d 925. We hold that the order was supported by competent and substantial evidence. In addition to the facts already recited, the record contains a study, conducted at the Commission’s request, by two professors on the faculty of the School of Business and Public Administration of the University of Missouri. That report pointed out that current assets had been pared to an operational minimum and that the ability of the company to raise cash in an emergency appeared to be limited. It concluded that the liquidating dividend of $250,000 made June 20, 1963, should not have been made, and that the company could not afford further liquidating dividends in the foreseeable future. The record in the case indicates that attorneys for Transit recognized the fairness of this report. It is true, as Transit points out, that there was no evidence of insolvency of Transit or that it had failed to furnish service, but nevertheless there was substantial evidence to support the order which was made. The Commission was not required to wait until the horse was gone to lock the barn door. Liquidating dividends of $1,804,600 had been made in 1963 and used by the stockholders to pay on the purchase price of the stock. Another $1,500,000 had been withdrawn in the sale of the 4% Series C Bonds (returned later as a result of Commission hearing). The Commission concluded that these capital withdrawals, if continued, would imperil the ability of the company to provide service. The Commission was not required to await either inadequate service or insolvency as a condition precedent to action on its part. This would be inconsistent with the language and the purpose of The Public Service Commission Act.

Complaint is made by Transit of a conclusion of the Commission as to the purpose of a depreciation reserve and the purposes for which cash received from depreciation accruals may be used. That question is not before us on this appeal, and we express no opinion thereon. This appeal does not involve the use of a depreciation reserve but only the question of the propriety of the Commission’s order prohibiting further distributions from the unearned surplus without Commission approval and whether there was evidence to support the order in this case. Our opinion is limited to these questions.

The judgment is affirmed.

All concur.

      . A total of six orders were issued but an appeal was taken only as to the order quoted.

      . In approving the reorganization, including the transfer of the non-operating assets to Sovereign, the Commission concluded “that sufficient operating capital would remain in ‘new Transit’ so that the Company can continue to operate transit service in the greater Kansas City area.”

      . The Greater Kansas City Bus Company was a corporation formed as a wholly-owned subsidiary of Westgate for the purpose of owning the operating properties of Transit. Buses were leased to Transit.

      . At this hearing a company balance sheet for February 29, 1964, disclosed current assets of $431,108 and current liabilities of $1,393,842, whereas at the time of the reorganization of Transit, current assets and liabilities had been approximately equal. The unearned surplus account also reflected the results of the partial liquidating dividends.

      . “351.210. Paid-in surplus — its distribution and restrictions. 1. Paid-in surplus, ■whether created by reduction of stated capital or otherwise, may be distributed in cash or in kind to the shareholders entitled thereto, subject to the following restrictions * * *:

      “ (1) [Inapplicable]
      “(2) No such distribution shall be made to any class of shareholders when the net assets are less than its stated capital or when such distribution would reduce the net assets below the stated capital;
      “(3) Bach such distribution, when made, shall be identified as a liquidating dividend * * *."

      . Section 361.690(3) indicates an intention of the Legislature that Chapter 351 should not affect companies such as street railway companies where to do so would be inconsistent with, in derogation of, or in conflict with the purpose of, existing laws with reference to such companies. In that connection, see Law Review Commentaries following § 361.010, 17 V.A.M.S., pp. 330, 331.

      . The record also discloses that on May 3, 1963, certain 4% First Mortgage Series C Bonds of Transit in the amount of $1,589,100, maturing January 1, 1967, were sold by Transit for $1,500,000 to Alice Wrigley as trustee for the stockholders. These bonds, after original issuance, had been reacquired by Transit but had not been cancelled. Transit received $1,500,000 from Alice Wrigley, but immediately declared an additional liquidating dividend of $1,500,000 and returned the $1,500,000 to- Alice Wrigley. As a result, the unearned surplus account was reduced by that sum. Alice Wrigley then pledged the Transit bonds as additional collateral security to guarantee payment of the notes given by the seven stockholders when they purchased the stock of Transit. As a result of proceedings before the Commission, this transaction was cancelled and the bonds were returned to the treasury of the corporation and the $1,500,000 reduction in the unearned surplus account was restored.

      . The viewpoint of the Commission was expressed in its comments overruling Transit’s application for rehearing, as follows:
      “Any public utility, including a street railroad corporation, subject to the jurisdiction of the Commission cannot liquidate its assets, distribute the same to its shareholders and discontinue its service to the public without the approval of the Commission. However, the Transit Company had accomplished a partial liquidation. The study conducted by financial experts employed by the Commission and the City of Kansas City found that the company’s assets have been pared to an operational minimum and concluded that the company cannot afford further liquidating dividends in the foreseeable future. The Respondents concurred in the findings and conclusions of these experts.
      “ ‘ORDERED: 5.’ was promulgated pursuant to the powers and duties of the Commission in regard to the capitalization of the Transit Company with the intention of providing maximum protection to the capital integrity of the company and its resulting ability to render public service. The directive is independent of the uniform system of accounts applicable to the company and it was issued as an additional safeguard against further liquidation of the company.”


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Frank J. GREISER, Respondent, v. WESTERN SUPPLIES COMPANY, Appellant.
    No. 51467.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Motion to Modify and for Rehearing Denied Sept. 12, 1966.
    Edward Fredrickson, St. Louis, for respondent.
    M. E. Stokes, F. Douglas O’Leary, Mo-ser, Marsalek, Carpenter, Cleary & jaeckel, St. Louis, for appellant.
   HIGGINS, Commissioner.

Action for damages for personal injuries in which defendant appeals from verdict and judgment for plaintiff for $50,000.

Plaintiff’s petition, based on the doctrine of res ipsa loquitur, alleged an explosion which caused his injuries. Defendant’s answer admitted the explosion, plaintiff’s injuries, and defendant’s corporate status and ownership of the building when the explosion occurred. Defendant also pleaded the affirmative defense that plaintiff was a statutory employee of defendant making the Workmen’s Compensation Law plaintiff’s exclusive remedy. Plaintiff’s reply admitted that defendant was a major employer under the Law and that plaintiff and defendant were under the Law, but denied that the injury arose by accident occurring in connection with employment of plaintiff by defendant and that the remedies provided by the Law were exclusive.

The explosion which injured plaintiff occurred February 26, 1962. Plaintiff at that time had been employed for eight years by Pinkerton’s National Detective Agency, Inc., as a security guard, and during the last three years of his employment had been assigned to defendant. Pinkerton paid his wages, withheld his taxes, furnished him a gun and badge, supplied him with uniforms and emblems, told him when and where to work, and gave him written instructions on his duties while assigned to the plant occupied and controlled-solely by defendant at 2920 Cass Avenue, St. Louis, Missouri. Western Supplies Company was engaged in making shoe machinery and cutting dies used by the shoe industry. The main floor of its building was practically all manufacturing space. A partial second floor housed office facilities and a partial basement was used for a boiler and utility room. The boiler room contained a furnace and boiler for heating the plant, a gas water heater and a gas compressor which built up the pressure of natural gas as it came from the supplier’s mains for use in the o/ens and furnaces which were used to harden steel dies. There were fenced parking lots at-the sides of the building.

Defendant and Pinkerton had an agreement under which Pinkerton furnished protection service to defendant for a fee, and under that contract, plaintiff was assigned to perform duties on the 12 midnight to 7:00 A.M. shift six days per week. Plaintiff’s usual procedure was to relieve a Mr. Kreiger, a watchman employed directly by Western on the prior shift. Plaintiff would receive the time clock from Mr. Kreiger, let him out the gate, lock it behind him, and then commence his rounds which included six stations. Station No. 1 was the office where he would see that all lights were out, water turned off, and doors and windows secured; station No. 2 was the factory office on the first floor where he checked the tool crib and maintenance cage; station No. 3 was a quonset hut on the parking lot where he checked the gate and building security; station No. 4 was another office check; station No. 5 was the boiler room where plaintiff checked the boiler gauges and water level and saw that the compressor was off; station No. 6 was in the plating department where the heat-treating furnaces and chemical vats were located. He “punched” each of these stations into the time clock on each hourly round. It took ten to fifteen minutes to make a round. Plaintiff had additional duties on his 5:00 A.M. round of admitting the milkman and opening the lot gates and plant doors so the day shift employees could enter. He also had additional daily duties on his 4:00 A.M. round. When he got to the boiler room, station No. 5, he would fill an oil cup on the side of the gas compressor, turn a valve to let gas into the compressor and another to let gas into a storage tank. He would wait until the gas pressure rose to 25 pounds and then go upstairs to station No. 6 and light the heat-treating furnaces with a gas torch provided for that purpose by Western. He would first light the torch, then open a gas valve on each furnace and apply the torch to the furnace. There were some electrical controls on the furnaces and a part of plaintiff’s job was to manipulate them in a manner which kept the furnaces at a certain temperature. Plaintiff would not light all the furnaces every day. On some occasions some of the furnaces would have written notes left on them by Western employees telling him not to light those furnaces. Also on occasion plaintiff would remove metal from the furnaces at the request of Mr. Kreiger. This operation would arise if the metal had not cooled sufficiently for Kreiger to remove it before he left and it had to be done before the furnaces could be lighted. It was necessary for the furnaces to be lighted on the 4:00 A.M. shift in order for those who worked at the furnaces on the day shift to start at the regular time. There was also a special procedure to follow if a bell on the furnace rang, in which case plaintiff was to shut off the gas and pull a switch.

On February 26, 1962, plaintiff completed his 4:00 A.M. round. He started the gas compressor in the boiler room and then went upstairs and lighted the furnaces. As he passed the opening to the boiler room on his way to the office he heard a “foreign” noise and went downstairs to investigate. He checked the water gauge on the boiler and turned to check the pressure gauge. At that time an explosion occurred and the next thing plaintiff remembered was being at the telephone asking for police and fire departments. Plaintiff did not know what exploded. During the six months preceding the explosion, plaintiff reported to defendant that he had smelled gas in the boiler room on three or four occasions. He did not smell any gas on the occasion of the explosion and did not know of any trouble in the boiler room before the explosion. An expert gave his opinion that a natural gas explosion occurred.

Appellant says that the court erred in submitting the case to the jury and in failing to sustain his motions for directed verdict and for judgment after verdict because “plaintiff was an employee of defendant within the meaning of the Workmen’s Compensation Act of the State of Missouri. All of plaintiff’s work including the security measures and duties involving turning on machinery, lighting furnaces and checking temperatures and pressures were part of the usual business of defendant * * Respondent joins the issue saying that “plaintiff, an employee of Pinkerton National Detective Agency, Inc., an independent contractor, was not a ‘statutory employee’ of the defendant under the provisions of § 287.040, V.A.M.S., and was therefore entitled to maintain a common law action against defendant because fair-minded men could conclude from the evidence that the work being performed by plaintiff was not an operation of or in the usual course of defendant’s business but was merely incidental, ancillary or auxiliary thereto; the trial court properly submitted this question * * * and the jury resolved the issue in plaintiff’s favor.”

Section 287.040, V.A.M.S., of the Workmen’s Compensation Law provides : “Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business,” and Section 287.120, V.A. M.S., provides: “The rights and remedies herein granted to an employee, shall exclude all other rights and remedies of such employee * * * at common law or otherwise, on account of such accidental injury or death, except such rights and remedies as are not provided for by this chapter.”

In determining whether one is a statutory employee under Section 287.040, V.A.M.S., it has been declared that “ ‘If the work being done at the time of injury is not an operation of, or in the usual course of, the business which the employer customarily carries on upon his premises, but is only incidental, ancillary, or auxiliary thereto, then’ — the contractor or his employee is not a statutory employee.” State ex rel. Long-Hall Laundry & Dry Cleaning Co. v. Bland, 354 Mo. 97, 188 S.W.2d 838, 842[2], “ ‘* * * there is no infallible test. Each case presents its own * * * particular facts.’ ” Walton v. United States Steel Corp., Mo., 362 S.W.2d 617, 622[3], quoting Viselli v. Missouri Theatre Bldg. Corp., Mo., 234 S.W.2d 563, 566[1], “The defense that plaintiff was a statutory employee and hence could not maintain an action at common law is an affirmative one and the burden of pleading and proving that defense rests upon the defendant,” and in determining whether the court erred in failing to direct a verdict for defendant it is the rule that a “ ‘court should never withdraw a question from the jury, unless “all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion from the facts which condition the issue.” ’ ” Walton v. United States Steel Corp., supra, 362 S.W.2d l. c. 621[2]. See also Roberts v. Epicure Foods Co., Mo., 330 S.W.2d 837, 839[1]. It has been said too that “ ‘the chief purpose of provisions of this type is to protect the employees of subcontractors who are not financially responsible, and to prevent employers from relieving themselves of liability by doing through independent contractors what they would otherwise do through direct employees.’ ” Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332, 334[2].

Under the authorities the issue can be stated as whether fair-minded men could conclude that the work done by plaintiff at the time of his injury was merely “incidental, ancillary or auxiliary” to defendant’s business or, on the other hand, was such work shown to be “an operation of, or in the usual course of,” defendant’s business?

In Anderson v. Benson Mfg. Co., Mo., 338 S.W.2d 812, plaintiff, an employee of an independent contractor, Banker’s Protective Patrol, Inc., was assigned as a security guard at the defendant company while it was engaged in classified work for the gov-' ernment calling for enforcement of security regulations. Plaintiff was injured while on the job by the fall of crating frames stacked against defendant’s building. In holding that he was required to proceed under the Workmen’s Compensation Law the court said: “Defendant’s use of guards was not an unpredictable and sporadic happening but was a regular and continuous operation in connection with its national defense work. * * * The conduct of a part of the usual business of an employer may not in itself justify his continuation in business but nevertheless may fit in and constitute an operation of the usual business conducted on the premises. Plaintiff’s guard work was being performed under contract and on defendant’s premises; and under this record the furnishing of guard services was not an isolated and specialty job at defendant’s plants but was regularly and continuously performed as an integrated part of defendant’s usual business.” 338 S.W.2d l. c. 815[2], Similar results were reached under comparable provisions of Louisiana law, LSA-R.S. 23:1021 et seq., in Gant v. Jackson Brewing Co., La.App., 112 So.2d 767, where a Pinkerton guard assigned security duties only in defendant’s brewery was held to be a statutory employee of the defendant in respect to injuries received when he slipped and fell while making rounds; and in Isthmian S.S. Co. of Delaware v. Olivieri, 5 Cir., 202 F.2d 492, where plaintiff, an employee of Lehon’s Protective Police Service and assigned to guard cargoes on defendant’s wharves, was held to be defendant’s statutory employee in respect to injuries caused by cartons permitted to fall by an employee of defendant.

Although the Louisiana cases are persuasive and the language and circumstances in Anderson v. Benson Mfg. Co., supra, are compelling, this case need not rest on an answer limited to whether plaintiff’s security duties alone made him a statutory employee of defendant because, in addition to those duties, plaintiff performed work clearly in the operation or usual course of defendant’s business which made him defendant’s statutory employee. Plaintiff regularly and routinely checked the pressure and water levels in the boiler which heated defendant’s plant; he removed cooling metal from the furnaces if necessary; he oiled the gas compressor; he opened valves to permit natural gas to enter the compressor and storage tanks which was essential to the function of the heat-treating furnaces; when the necessary pressure was reached, he fired the heat-treating furnaces indicated to he fired and adjusted constant temperature controls, operations necessary to the preparation of the metal used in defendant’s manufacture of shoe machinery and cutting dies. Prior to plaintiff’s employment, such duties were performed by employees of defendant, and it was obviously essential that these operations be performed by plaintiff or someone at 4:00 A.M. in order for the plant workers on the day shift to commence their work. In this respect plaintiff testified: “Q And you knew, of course, if you didn’t start all of this equipment, then the plant couldn’t run when the employees came in? A They would have to wait until they heated. Q Well, they couldn’t start up at a regular time? A No. Q So it was essential that you do this? A Yes.”

Thus, even though plaintiff did not actually form or shape metal into a die or tool, his work was regularly a part of the total work performed at the plant in that workers on another shift did the forming and shaping after he had first timely prepared their equipment and plant for them. Under such evidence plaintiff’s work was as much an operation and a part of defendant’s usual business as was plaintiff’s work in Montgomery v. Mine LaMotte Corp., Mo., 304 S.W.2d 885. There defendant was engaged in mining and processing lead ore. Ore from the mine was trucked three miles to the mill by an independent contractor and plaintiff was a truck driver employed by the independent contractor for that operation ; he was struck by a rock while waiting in the mine for his truck to be loaded with ore to be hauled to the mill. He attempted unsuccessfully to recover in a common-law action against defendant, the court holding that he was a statutory employee whose remedies under the Workmen’s Compensation Law were exclusive. Plaintiff’s situation is likewise similar to plaintiff’s in Kennedy v. J. D. Carson Co., Mo.App., 149 S.W.2d 424, 428[1], where plaintiff, an independent contractor in the business of repairing elevators, was held to be the statutory employee of the defendant department store because “At the time of his injury he was making an adjustment which was a part of the regular work which his agreement required him to do. The elevator being a highly necessary instrumentality in carrying on the (company’s) usual business, it was a part of the company’s business to anticipate the necessity for just such work to be done, * * *. Such repair and service work * * * was a necessary incident and a usual operation of the company’s usual business, and in no proper sense of the word could it be called ‘casual.’ ” In Viselli v. Missouri Theatre Bldg. Corp., supra, window-washing service performed by plaintiff employee of an independent contractor was a service sold to tenants in the usual course of defendant’s business of leasing office spaces, circumstances which dictated holding that plaintiff was defendant’s statutory - employee. See also Fox v. Fafnir Bearing Co., 107 Conn. 189, 139 A. 778, 58 A.L.R. 861. In McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149, plaintiff was held to be a statutory employee under less persuasive circumstances. There plaintiff, a bricklayer, was employed under contract to make repairs to defendant’s buildings. He charged in his common-law action that defendant negligently permitted smoke, gases, and fumes to accumulate in buildings where plaintiff was making repairs resulting in injury to him. The court reversed a jury verdict for plaintiff holding that plaintiff’s repair work was in the usual operation of defendant’s business of manufacturing meat products. Plaintiff had worked at his employment at Western for three years and it was, therefore, regular rather than casual, Section 287.020[7], V.A.M.S., and it certainly was not sporadic or unpredictable. Nabors v. United Realty Co., Mo.App., 298 S.W.2d 474, 478[3].

Respondent argues properly that the mere fact that a delivery of defendant’s products, Walton v. United States Steel Corp., supra, 362 S.W.2d l. c. 624[5], the performance of janitorial services, Wooten v. Youthcraft Mfg. Co., Mo., 312 S.W.2d l, 4[2], and having one’s windows washed, Dixon v. General Grocery Co., Mo., 293 S.W.2d 415, are essential to defendant’s operations does not mean that such are necessarily the usual business of the defendant. Those cases are not determinative of plaintiff’s situation here, however, because in Walton v. United States Steel Corp., supra, the plaintiff was an employee of the independent contractor who delivered the defendant manufacturer’s products over the road, and thus was not engaged in the “usual business which defendant customarily carried on upon its premises,” 362 S.W.2d l. c. 622[4]; and in Wooten v. Youthcraft, supra, and Dixon v. General Grocery Co., supra, the janitorial and window-washing services performed by the plaintiffs bore no relation to operations of defendants’ usual businesses of manufacturing women’s clothing and warehousing groceries, as did the duties performed by Mr. Greiser for Western Supplies Company.

Thus, it conclusively appears from plaintiff’s evidence and from a most favorable view of all the evidence that the work done by plaintiff at defendant’s plant was clearly and as a matter of law a part of the operation of the usual business of defendant; and since plaintiff was, therefore, an employee of the defendant within the meaning of the Workmen’s Compensation Law, plaintiff failed to make a submissible case for the jury and the court erred in refusing to direct a verdict for defendant. It is unnecessary to consider other errors assigned.

The judgment is reversed.

HOUSER, C., concurs.

WELBORN, C., not sitting.

PER CURIAM.

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

HOLMAN, P. J., HYDE, J., and WOLFE, Special Judge, concur.

HENLEY, J., not sitting.


author: BARRETT, Commissioner.

text:
    KANSAS CITY, Missouri, Plaintiff-Respondent, v. KANSAS CITY TRANSIT, INC., Defendant-Appellant.
    No. 51544.
    Supreme Court of Missouri, Division No. 2.
    July 11, 1966.
    Motion for Rehearing or to Transfer to Court En Bane Denied Sept. 12, 1966.

      Herbert C. Hoffman, City Counselor, William Icenogle, Associate City Counselor, Benj. M. Powers, Sp. Counsel, Kansas City, for respondent.
    Albert Thomson, Daniel L. Brenner, Kansas City, Linde, Thomson, VanDyke, Fair-child & Langworthy, Brenner, Ewing, Lockwood & O’Neal, Kansas City, of counsel, for appellant.
   BARRETT, Commissioner.

Kansas City Transit, Incorporated, a “street railroad corporation” (RSMo 1959, § 386.020(5) (7), V.A.M.S.), and its predecessor corporations have operated the public transportation systems, streetcars, trolley cars and now buses, in Kansas City almost without interruption for more than fifty years. In 1917, amended in 1921 while in receivership, Kansas City Transit entered into a written contract with Kansas City and seven railroads and terminal companies for the construction, maintenance and reconstruction of the 23rd Street Viaduct. On June 26, 1964, Kansas City instituted this action against Transit for breach of the contract. Upon the pleadings, stipulations, attached affidavits and exhibits both parties moved for summary judgment. With a record in this posture the circuit court found that there was no genuine issue as to any material fact, that Kansas City was entitled to judgment as a matter of law and accordingly entered judgment in its favor for $668,870.38 and Transit has appealed claiming that it is no longer legally bound by the contract and that this court should reverse the judgment and enter a summary judgment in its favor.

Related if not connected contracts, some of them involving other viaducts and other parties as well as some of Transit’s predecessors, are all fully set forth together with detailed facts and historical background in Kansas City v. Kansas City Terminal Railway Co. (1930), 324 Mo. 882, 25 S.W.2d 1055, Bowers v. Kansas City Public Service Co. (1931), 328 Mo. 770, 41 S.W.2d 810, and more recently Kansas City Terminal Ry. Co. v. Kansas City Transit (1961), Mo.App., 350 S.W.2d 828, overruled by this court en banc Kansas City Terminal Ry. Co. v. Kansas City Transit (1962), 359 S.W.2d 698, (Certiorari denied 371 U.S. 968, 83 S.Ct. 551, 9 L.Ed.2d 539), and Union Pacific Railroad Co. v. Kansas City Transit Co. (1966), Mo.App., 401 S.W.2d 528.

Insofar as material here the contract of July 31, 1917, between the city, the railroads and Transit’s predecessor, provided for the construction of the 23rd Street Viaduct at an approximate cost of $602,703.00. The viaduct was to be constructed over the tracks of the several railroads and of course was to be used by Transit “for the operation of its streetcars over the same.” Each of the three contracting parties, the city, Transit and the railroads, were to contribute to the original cost of construction one-third of the contract price, Transit’s third being estimated at $200,921.00. There were detailed specifications but of the greatest significance, in addition to the provisions as to original construction and cost, are these provisions relating to ownership, use, maintenance, reconstruction and other costs or expenditures:

“12. USED BY STREET RAILWAY (Transit) : The Kansas City Railways Company (Transit), its successors and assigns, may use the Main Viaduct - and the ‘Wyoming Street Approach’ thereto for its double track electric street railway, subject to the provisions of its franchise with the City, under Ordinance Number 20140, approved June 15, 1914, and amendments thereof.”
* * * ⅜ * *
“14. MAINTENANCE. The viaduct and its approaches, when completed, and the easements therefor, shall be the property of Kansas City, Missouri, as and for a public highway, and Kansas City shall be responsible for maintaining and lighting said structure and its approaches and keeping them in repair; but each of the parties hereto * * * shall contribute to the cost of such maintenance, repairs or the reconstruction thereof, * *
* * * * * *
“If, at any time, such viaduct or its approaches needs repairing or reconstructing, Kansas City shall proceed at once, to make such repairs or do such reconstructing, and when finished, it shall render an itemized statement thereof to each of the parties hereto, and * * * each party shall pay to Kansas City its share of such maintenance, repairs or reconstruction * *

Separately and additionally Transit’s predecessor agreed that:

“The streetcar tracks and the necessary equipment thereof on said viaduct or its approaches, shall be maintained by the Kansas City Railways Company, its successors or assigns, without cost to Kansas City or to the other parties contributing to the cost of said viaduct and approaches.”

In 1921, with the approval of the United States District Court, the appellant’s receivers entered into a supplemental agreement with the railroads and the city “For The Completion Of The Twenty-Third Street Viaduct.” Again insofar as material here that additional contract contains these provisions:

“ — and with such modifications as would better secure to the Kansas City Railways Company * * * the use, control and occupancy of that portion of the main viaduct designed and constructed exclusively for street railway traffic * * * and with such modifications as would prevent the use by other street railways of such portion of the main viaduct * *
* ⅜ * * 5fc *
“ — and upon the aforesaid payments being made, and the balance of said obligation paid in full * * * the Kansas City Railways Company * * * shall have the exclusive use and occupancy of the space set apart for streetcars on the main viaduct * * * to the exclusion of all other streetcars for its or their modern double track electric street railroad * *
“And Kansas City, Missouri, hereby agrees that it will not permit any other persons or companies to use said viaduct and approach, or any part thereof, for the operation of streetcars thereon * * * nor permit such use in such a manner, or to such an extent as to unreasonably interfere with the use thereof by the Receivers * *
* * * * * *
“(3) Maintenance: It is further agreed that the said Receivers, their successors, The Kansas City Railways Company, its successors * * * shall be obligated to keep and perform all of the obligations to be kept and performed by the Kansas City Railways Company, its successors, * * * under Clause 14 of the contract dated July 31, 1917, relating to maintenance, repairs and reconstruction of said viaduct and its approaches

The parties carried out, performed and operated under this original contract over the years, the 23rd Street Viaduct was completed, Transit’s streetcar tracks were installed on the designated area and all payments were made by the parties as stipulated. Other facts, particularly those noted by the appellant in its brief, are that on November 1, 1937, the city passed an ordinance authorizing Transit to install and use “trolley bus and motor bus lines for existing facilities.” In 1948 and 1950 the city passed ordinances authorizing Transit to substitute buses for streetcars on 12th and 18th Streets and their viaducts, appellant repeatedly says “Transit accepted this ordinance.” In 1948 Transit was permitted to surrender its trackage to the city, including that over the 23rd Street Viaduct, for which it paid the city $70,000 “for rehabilitating street” and to substitute bus service. After the 1951 flood service was interrupted for making “alterations,” raising a portion of the viaduct “as determined” by the United States Corps of Army Engineers. The cost of that particular job was $113,112.64 and when Transit refused to pay its one-third the city petitioned the Public Service Commission of Missouri for an order approving the alteration and “apportioning the costs.” But as to Transit and this phase of the matter the Public Service Commission had no jurisdiction and so could only allocate the costs between the railroads and the city. As to Transit the commission said, “If Public Service is liable for any of the costs its liability would result from it contracts and operations pertaining to the viaduct, and liability therefor, if any, would not come under the jurisdiction of the Commission!’ Re 23rd Street Viaduct, Kansas City, Mo., 6 P.S.C.R.(N.S.) 669, 676. Since 1954 and Transit’s refusal to pay one-third of a $39,000 repair bill the parties have stipulated or agreed by ordinance, according to the petition in this case, to continue Transit’s services and facilities and “neither party waived its right under the original contract for repairs.” One other incidental matter should be noted, in 1961, when Transit became an integrated and diversified company and petitioned the Public Service Commission “for authority to effect a corporate reorganization and merger” it set forth its certificate of convenience and necessity to operate a “street railroad” in Kansas City, it set forth the orders permitting it “to convert its transit system completely to motor bus operation,” it set out the “retirement” of streetcar tracks and specifically pledged that “as a result of the reorganization plan and merger, transit service will continue to be provided in the Greater Kansas City area under a strengthened corporate structure ultimately to the benefit of all concerned, including the public.” These matters were all noted in the commission’s order of approval along with Transit’s assumption of “all liabilities and obligations.”

And now giving rise to the immediate litigation, by 1960 the 23rd Street Viaduct “became in dangerous condition and required extensive repairs” and Kansas City and the railroads, after the appropriate preliminary proceedings, applied to the Public Service Commission for an apportionment of cost and permission for “repair and reconstruction” of the viaduct, Transit not joining or appearing. And after a full finding of facts the commission gave its authorization, the viaduct work was completed and in accordance with the original contract Kansas City and the railroads paid the cost of $2,006,611.15 and billed Transit “in connection with the rehabilitation” for its one-third share $668,870.38 and upon its refusal to pay instituted this action.

One of appellant Transit’s assignments of error was authoritatively disposed of in 1929 and requires but brief consideration here, that is the contention that “a construction of the contracts that would still impose the burden on Transit to contribute toward the maintenance, reconstruction, or repairs of the 23rd Street Viaduct would amount to a violation of the constitutional safeguards guaranteed” by the 14th Amendment and Art. 1, Sec. 8, clause 3 of the Constitution of the United States, the due process, equal protection and interstate commerce clauses. But in the 1920s one of the parties refused to build its part of the Oak Street Viaduct and this court en banc, Kansas City v. Kansas City Terminal Railway Company, 324 Mo. 882, 25 S.W.2d 1055, in a suit to compel construction, had this to say, l. c. 907, 915, 916, 25 S.W.2d l. c. 1066, 1070:

“The city having fully performed the contract on its part had, and has, a vested right to performance on the part of the company.”
“Neither insolvency nor the difficulty attendant upon the borrowing of money with which to perform constitutes a defense to an action to enforce a contract, unless made so by the contract itself. It is not a defense in this case. Nor does the claim that if the defendant be required to discharge a valid obligation entered into by it for the purpose of acquiring in part its railroad property, such requirements will burden interstate commerce in violation of the commerce clause of the Constitution of the United States, merit serious consideration.”

As to the specifically briefed claim that enforcement of the obligation deprived Transit “of its property without due process of law and deprives it of the equal protection of the law” the court said:

“This is a suit to compel the specific performance of a contract. The contract is a valid one; the parties to it were competent; the performance sought falls clearly within its terms and intent. Its enforcement as against defendant cannot in reason violate any constitutional right.”

Invoking two auxiliary rules of construction, one, “that, where a contract is fairly and reasonably open to two constructions, one making it legal and the other illegal, the former must be adopted” (Wiggins Ferry Co. v. C. & A. Ry. Co., 128 Mo. 224, 245, 27 S.W. 568, 571, 30 S.W. 430), and two, that the laws in existence, including city ordinances, when the contract was executed became a part of the contract (1 Restatement, Contracts, Sec. 236(a)), the appellant contends that it once had an exclusive right to operate streetcars over the viaduct and since other bus companies now also have that right and operate over the viaduct its exclusive right to use has been destroyed and therefore it is said that the circuit court erroneously concluded it was now bound to perform its contract obligations. Specifically, this is its assignment of error, urged in connection with the interstate commerce clause and the auxiliary rules: “The 1917 agreement as amended in 1921 required Transit to pay maintenance costs only while it had an exclusive right to operate streetcars over the viaduct. The court erred in entering a judgment against Transit for maintenance costs incurred after Transit no longer had an exclusive right to operate buses over the viaduct.” Briefed as a separate point but in fact in this very connection appellant Transit contends that the cases of Kansas City Terminal Ry. Co. v. Kansas City Transit, by this court en banc (359 S.W.2d 698), and Union Pacific Railroad Co. v. Kansas City Transit Co., by the Kansas City Court of Appeals (401 S.W.2d 528), especially insofar as the former construes “use” “in another contract under an ordinance and is not compelling authority for a decision in this case holding that streetcars are buses under the 1917 agreement as amended, and therefore the court erred in entering judgment against Transit based upon that decision.”

The appellant points only to the 23rd Street Viaduct and of course the viaduct and its contract comprise the subject matter of this litigation and it is assumed that for its franchise purposes Transit has the right to an exclusive use of the viaduct. Nevertheless, as it repeatedly recited in its latest plan of reorganization, the appellant has a franchise from Kansas City to operate as a common carrier of passengers in the greater Kansas City area. That franchise is for a number of years and the appellant does not claim that any other common carrier is operating in competition with it or that Kansas City has permitted an infringement of its franchise rights and it does not propose in this proceeding, even if it were possible, to surrender or modify its franchise rights. The appellant is a “street railroad corporation” and its franchise is for a “street railroad” which includes “by whatsoever type of power operated” and “by whatsoever type of vehicle operated, for public use in the conveyance of persons or property for compensation.” RSMo 1959, § 386.020(5) (7), V.A.M.S. While Transit built and maintained its tracks and operated streetcars, as the contract provided, its use of that part of the viaduct was indeed “exclusive” but it was no' doubt to its franchise advantage to surrender its tracks and that space to the city and to substitute buses for streetcars. And when it voluntarily made the substitution it necessarily used the viaduct in common with all other vehicular traffic including other types of common carriers of both persons and freight but not upon this record in derogation or infringement of its franchise rights.

In any event upon all the essential issues this case is governed and controlled by the opinions in Kansas City Terminal Co. v. Kansas City Transit Co., 359 S.W.2d 698, and Union Pacific R. Co. v. Kansas City Transit Co., 401 S.W.2d 528. The appellant contends that the Kansas City Terminal case is distinguishable in that “the railroads did not agree that Transit would have an ‘exclusive use.’ The city in our case did agree that Transit’s use would be exclusive and therefore when its use became nonexclusive, the contract was breached and terminated and Transit’s obligation to maintain ceased.” But, as indicated, upon this record Transit yet enjoys its exclusive franchise use not only of the streets and highways in the city but as well of this and other viaducts. In addition, in the Terminal case the court of appeals, upon the appellant’s urging, held that “streetcars and streetcar lines” in the contract did not mean “buses” and that therefore when Transit was permitted to substitute bus service for streetcar service it was no longer bound by its contract with the railroads “to participate in the costs incurred by the latter in construction and maintaining public-thoroughfare viaducts.” 350 S.W.2d l. c. 829-830. The case was transferred and the court en banc not only overruled the court of appeals but by necessary implication if not directly disposed of Transit’s contentions here. Material here, the court said, 359 S.W.2d l. c. 704:

“Thus Transit was required to assume the same status as Terminal as to paying the cost of building the viaducts and subways and their approaches, including the land cost. Therefore, it was contemplated that Transit and Terminal should participate in this enterprise on the same cost basis. However, Transit was given a way out of its obligation for maintenance because that obligation was for ‘the period of such use.’ * * * The decisive issue is: What ‘use’ was meant ? Transit is still using the viaducts and subways * * * for ‘transportation of metropolitan passengers as a common carrier in intrastate and interstate commerce.’ It is our view that this was the use originally contemplated although the motive power and type of vehicle has changed * *
⅜ * * * ⅜ ⅝
“The obligation to pay was unequivocal and unconditional. Although elsewhere therein the right to put tracks on the station plaza was stated and the obligation to pave around tracks on viaducts and in subways provided, the obligation for the cost of future maintenance as well as the cost of building the new structures was stated unconditionally without regard to how they were to be used by Transit.”
* * * # * *
“Our view as to the reasonable construction of the agreement (based on the ordinances and contract) considered as a whole is that the maintenance obligation continues as long as Transit continues to use the viaducts and subways for its business of surface transportation of passengers over them regardless of the kind of motive power and vehicles used for that purpose.”

When the railroads enforced Transit’s obligation to contribute to the repairing of another viaduct the court of appeals in Union Pacific Railroad Co. v. Kansas City Transit Co., 401 S.W.2d 528, l. c. 536, applied and followed the Terminal case adding, material here:

“There has been no failure or lapse of consideration to excuse Transit from performing its contract obligations. * * * It is the law that when a contracting party has fully performed its contract obligations it thereby acquires a vested right to performance by the other party in accordance with the contract terms.”
* ⅝ ⅝ * ⅜ *
“The change of condition resulting from Transit’s abandonment of street cars and its use of motor buses instead did not affect Union Pacific’s vested right to performance by Transit. It is of no consequence that Transit thereafter derived no utility from the abandoned tracks.”

As suggested by appellant those were railroad cases involving separate contracts but all of these contracts are obviously a part of a larger single plan and purpose, as suggested in the Terminal case, “the surface transportation of passengers” by a franchised “street railroad corporation” in the greater Kansas City area and there is no more reason for not enforcing this contract in favor of the city than there was for not enforcing the other contracts for the railroads. Kansas City v. Kansas City Terminal Railway Co.; Kansas City Terminal Ry. Co. v. Kansas City Transit; Union Pacific Railroad Co. v. Kansas City Transit Co., supra.

The appellant’s final claim is that this action is barred by the ten-year statute of limitations, RSMo 1959, § 516.110, V.A. M.S. But in order to make the claim appellant invokes the doctrine of anticipatory breach of contracts (1 Restatement, Contracts, Sec. 318) and the rule in certain employment contracts (Baron v. Kurn, 349 Mo. 1202, 164 S.W.2d 310, 142 A.L.R. 787) and contends, since it breached the contract by denying liability for its obligations in 1954, it is not liable in damages for the breach for which recovery is sought in this suit instituted June 26, 1964. To support an anticipatory breach Transit says that when, on April 2, 1954, the city claimed that it was liable for one-third the cost of certain other repairs and it then denied liability it thereby started the running of the statute of limitations: “In our case, Transit failed to pay the installment due for maintenance and denied liability for repairs. Transit took the position that it had no obligation to pay maintenance costs since buses were not streetcars and a nonexclusive use is not an exclusive use.” Thus it is said that this refusal to pay in 1954, together with its denial of liability at that time, was a total breach of the contract, an anticipatory breach, and that therefore this action instituted more than ten years later was barred by the statute of limitations.

The contention as a whole is somewhat disingenuous, the city is not asserting a right to institute and maintain an action on the theory of Transit’s anticipatory breach, on the contrary the appellant is claiming that by its own conduct in refusing to observe its contractual obligations some years ago, it set in operation the statute of limitations. Among other authorities the appellant relies on the rule set forth in Sec. 318, Restatement, Contracts, unmindful, apparently of Sec. 322: “If no action on an anticipatory breach is brought before the time fixed by the contract for the beginning of performance by the party who has committed such a breach, the period of the Statute of Limitations begins to run only from the time so fixed by the contract.” Or as the commentary to rule 318 states on page 477: “So likewise, if no action is brought, the Statute of Limitations will not run on the right of the injured party from the time of the repudiation but only from the time when there is a failure to perform a promise (Sec. 322).” The rationale of Baron v. Kurn, supra, is explained in its annotation “that in such case the employee’s cause of action is for his wrongful discharge which accrues as one cause of action at the time of the discharge and against which the statute of limitations commences to run from that time, and not for wrongful failure to restore him to his job, which, assuming that the employer and employee relationship is not terminated by a discharge in fact, gives rise to successive causes of action as long as it continues, and therefore, the causes of action which accrue within the limitation period are not subject to its bar.” Annotation 142 A.L.R. 797, 798-799.

Perhaps, as the respondent suggests, a complete and ready answer to the appellant’s contention lies in the very plain language of the statute itself: “Civil actions * * * can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item * * RSMo 1959, § 516.100. As applied to this action and the appellant’s reliance on the doctrine of anticipatory breach, the statute is self-explanatory (Rippe v. Sutter, Mo., 292 S.W.2d 86) and if the contract is to be construed as providing for a series of installments suit was appropriately instituted within ten years of the accrual of the last installment. Sabine v. Leonard, Mo., 322 S.W.2d 831.

In its reply brief the appellant has attached an exhibit from the April 1955 hearing in the 23rd Street Viaduct case before the Public Service Commission, also a series of letters to and from Transit’s predecessor (also said to be exhibits in the case before the commission), including its then counsel’s opinion as to certain legal questions. The respondent has filed a motion to strike these fifteen pages from the appellant’s brief for the reasons that they “are not a part of the record in this case,” were not before and were not presented to the trial court, and are not matters of which this court may take judicial notice. It is not necessary to consider the motion and suggestions in detail, this of course is not the proper and orderly manner of perfecting and presenting a record and appeal in this court. However, this was a court-tried case and the Public Service Commission’s official report has been judicially noted (State v. Public Service Commission, Mo., 291 S.W.2d 95), and inadmissible evi-dentiary matters have been ignored (Civil Rule 73.01(d), V.A.M.R.; RSMo 1959, § 510.310, V.A.M.S.), and in these particular circumstances the motion to strike is overruled.

And for the indicated reasons the judgment is affirmed.

STOCKARD, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    Robert B. SYMPSON, as assignee of Alfred H. Osborne, Appellant, v. Clay C. ROGERS, Lyman Field and Reed O. Gentry, partners doing business under the style and firm name of Rogers, Field and Gentry, Respondents.
    No. 51593.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.

      Robert B. Sympson, Edgerton, appellant, pro se.
    Charles L. Carr, Kansas City, for respondents.
   EAGER, Presiding Judge.

This is a second appeal of the case shown at 314 S.W.2d 717. The suit is one by plaintiff as assignee of Alfred H. Osborne, a former lawyer, for compensation allegedly due Osborne under an oral contract with the defendants, who are lawyers practicing in Kansas City as partners. Both appeals were taken by plaintiff from judgments entered upon motions to dismiss. Consequently, we confine our statement of facts, generally, to the allegations of the petitions; however, it is conceded in the present case and it was agreed of record in the prior case, that both Osborne and this plaintiff surrendered their licenses to practice law and were disbarred by this court on December 10, 1951. We also take judicial notice of that fact. It is not indicated, however, that the disbarments had any connection with the cases in which compensation is now sought. The present transcript is somewhat irregular in certain respects but, since respondents have approved it and it contains the material record, we shall make no point of it.

We shall abbreviate radically the allegations of the petition and omit all formal allegations. Its substance is as follows: that prior to December 10, 1951, Osborne was a duly licensed attorney, specializing in personal injury litigation; that he had 50% contingent contracts in five listed personal injury suits against the Kansas City Public Service Company, all of which cases had been filed, investigated and prepared for trial, and one of which had been tried (a first time); that Osborne, prior to December 10, 1951, had forwarded these files to defendants, upon “an understanding” with his clients; that disbarment proceedings had been filed against Osborne; that he decided to surrender his license, and that he so advised defendants and requested the return of the five cases and files so that he might “settle or dispose of” them; that defendants then suggested that they and Osborne “negotiate a new agreement” and that they did agree (all prior to December 10, 1951, a somewhat “magic” date) as follows: that Osborne should be deemed to have “already earned” 50% of all fees eventually obtained by defendants; that Osborne would recommend that his respective clients employ defendants to prosecute their claims, that he would release all such clients from any liens and claims of his, and that by reason thereof and such services as Osborne “might remain able to give, perform, or provide in, and such as,” assisting to locate and relocate witnesses and clients, and in assisting to notify such witnesses and clients when and where to appear for depositions, medical examinations and trial and by assisting in arranging transportation, “if requested by defendants so to do,” it was agreed that defendants would arrange to collect one-half of the compensation for Osborne as money earned by him, or they would pay him a sum equal to one-half of any amounts they obtained. It was further alleged that Osborne carried out all such arrangements, that his clients accepted defendants as their counsel and signed new contracts, and that thereafter Osborne “performed all such services as he remained able to perform” in locating and producing witnesses, etc., “when requested so to do by defendants”; that between February 11, 1952, and July 23, 1953, by settlement (in three cases) or trial and appeal (in two) defendants collected the total sum of $78,361.25, out of which they derived total fees of $39,180.62; that defendants either collected one-half of such fees for Osborne or became indebted to him in that amount, to-wit, $19,-590.31, but refused at all times to pay him, although they had admitted to Mr. Fred Hulse (Missouri Bar Administration) that they “were holding the amount Obsorne or his assignee, was and is entitled to * * * ”; that prior to December 10, 1951, Osborne assigned to plaintiff all his rights and claims which had accrued or might accrue under his contracts of employment in the five listed suits or by virtue of any forwarding agreement or contract with new attorneys. Plaintiff prayed judgment for $19,590.31, with interest.

At this point we find it necessary to relate the developments subsequent to the filing of the (amended) petition just digested. The filing of an amended petition had been authorized by the prior opinion of this court, although there is much controversy between the parties as to the full meaning of that opinion. After filing the amended petition in the cause at' Kansas City, plaintiff voluntarily dismissed that case without prejudice and, on the same day, September 12, 1958, refiled the same petition as a new suit at Independence (which, of course, is in the same circuit and county). On October 6, 1958, defendants filed a lengthy motion to dismiss; on January 9, 1959, that motion was overruled, the court acting through Judge Jensen; defendants filed a very lengthy answer on February 12, 1959. In 1963 plaintiff filed a motion to strike many parts of the answer, and still later, in 1964, filed also a motion to require the production or inspection of the entire files in the five listed cases, along with certain other documents and records. On December 4, 1964, defendants filed another motion to dismiss; no leave to file is shown, but the court considered it and indeed its sustention is the basis of the present appeal. In brief substance it alleged: that the petition failed to state a claim; that plaintiff could have no greater rights than his assignor had; that an executory contract for “personal services” could not validly be assigned; that both Osborne and plaintiff were disbarred on December 10, 1951; that they were thereby precluded from performing the alleged agreement sued on, and could not legally collect any compensation on contingent contracts, even for services previously performed; that the judgment in Sympson v. Rogers et al., Mo., 314 S.W. 2d 717, was res adjudicata of plaintiff’s right to recover anything, this being a suit on. the same cause of action between the same parties; that defendants are prohibited from dividing legal fees with any layman; that the assignment was a fraudulent attempt to e.vade the law; that Osborne was automatically disbarred in Arkansas, where he had also been licensed, upon his disbarment in Missouri; that plaintiff was estopped to alter the details of the alleged contract as previously pleaded, and as adjudicated on the prior appeal; that plaintiff had failed to prosecute the action with any diligence whatever; that the purported assignment to plaintiff was indefinite, lacked consideration, and that the mere recommending of clients to defendants did not constitute “services” for which compensation might be charged.

On December 18, 1964, a hearing was held on the motion to dismiss before Judge James; he permitted defendant to introduce various exhibits which are sent here as part of the transcript, but which we deem to be largely immaterial. The hearing was not concluded but was continued, and Judge James died before making any-ruling. On June 9, 1965, the succeeding Judge, David T. Cavanaugh, entered an order which we quote, as follows: “Now on this 9th day of June, 1965, defendants’ Motion to Dismiss heretofore filed in said cause, having been duly considered by the Court, together with the written Suggestions In Support thereof, and the written Suggestions of the plaintiff in opposition thereto, and the Court being fully advised in the premises and finding that the plaintiff, Robert B. Sympson, and Alfred H. Osborne, plaintiff’s assignor, voluntarily having surrendered their licenses to practice law to the Supreme Court of this State on December 10, 1951, and the said Supreme Court having disbarred from the practice of law both plaintiff and said assignor, Alfred H. Osborne, the Court does sustain said defendants’ Motion to Dismiss plaintiff’s petition and said petition is by the Court dismissed with prejudice at plaintiff’s cost.

“It is further ordered by the Court that plaintiff’s Motion For Production of Documents be, and the same is overruled; and it is further ordered by the Court, that plaintiff’s Motion to Strike parts of defendants’ answer be, and the same is by the Court overruled.” From that order plaintiff took this appeal.

We note first that this is not a suit in quantum meruit, nor is it a suit against any of Osborne’s former clients; it is strictly a suit on a contract alleged to have been made by the successor attorneys. Such also was the prior case. 314 S.W.2d 717. Aside from ruling on certain formal matters, the court held in that prior case that the petition did not state a valid claim, but that the trial court should have permitted an amendment. The only matter specifically pointed out as making the petition defective was the permitted “inference” that under the agreement between Osborne and defendants, Osborne might be expected to continue to render legal services in assisting the defendants after his disbarment. The court assigned this as “one reason” for holding the petition defective; it then proceeded to state, as the rule in Missouri and as the weight of authority, loc. cit. 721, that: “* * * the disbarred attorney cannot recover any compensation (either on contract or quantum meruit) for any services previously rem dered under a contingent fee contract. Kimmie v. Terminal R. Ass’n of St. Louis, 344 Mo. 412, 126 S.W.2d 1197; Egan v. Waggoner, 41 S.D. 239, 170 N.W. 142; Davenport v. Waggoner, 49 S.D. 592, 207 N.W. 972, 45 A.L.R. 1126; In re Woodworth, 2 Cir., 85 F.2d 50; Fletcher v. Krise, 73 App.D.C. 266, 120 F.2d 809. The theory of the Kimmie case and the cases it follows is that the disbarment of an attorney for voluntary misconduct is the equivalent to a voluntary abandonment of his contract of employment and hence he cannot recover for the services he has rendered. For the contrary view see Stein v. Shaw, 6 N.J. 525, 79 A.2d 310.” However, as already indicated, the court remanded the case with leave to plaintiff to amend, thus holding that a cause of action could be stated under these circumstances. In that connection it was said, loc. cit. 723: “In connection with the foregoing we note that plaintiff has stated in his reply brief that if permitted to amend he could make aver-ments that would negative the inference we have heretofore drawn to the effect that Osborne had agreed with the defendants to render legal services after December 10, 1951. * * * We have considered the petition and various suggestions in the briefs in relation thereto and have concluded that we cannot confidently say that plaintiff is completely barred by the foregoing surrenders from stating a claim upon which recovery could be had for services rendered by Osborne prior to December 10, 1951.” While some of the language used may seem to be inconsistent with the result of the case, we do not take it to be a ruling that no compensation could be recovered here against the succeeding attorneys, but rather the contrary. The opinion does not preclude the plaintiff’s claim upon a theory of res adjudicata.

While much has been said in the briefs, pro and con, in comparing the prior petition with the present one, they are substantially similar so far as our issues are concerned, except that plaintiff has now omitted all allegations which “infer” that the agreement would have permitted or required Osborne to perform future legal services, and he has substituted the allegations already specified, which would seem to call only for such services as a layman (such as an investigator) could perform.

Certain preliminary contentions should be disposed of at this time. Plaintiff says that Judge Cavanaugh could not reverse the prior ruling of Judge Jensen, who had overruled a previous motion to dismiss the same petition. Both, if it be material, were pretrial rulings. The second ruling came nearly six years after the first, and the last motion was filed nearly six years after the defendants answered. However, the failure to state a claim was preserved in the answer and the consideration of the matter on the last occasion may well be regarded as a pretrial consideration of a separate issue, as permitted under Rule 66.02, V.A.M.R. The two rulings were in the same court, the motions were not identical, and we hold that Judge Cavanaugh had the jurisdiction and the power to consider and rule independently upon the present motion to dismiss. The trial judge would have been required to rule independently on the same question, had the case gone to trial on the merits. Kinsella v. Kinsella, 353 Mo. 661, 183 S.W.2d 905. Even the same judge has jurisdiction to “change his mind.” State ex rel. Lunsford v. Landon, 304 Mo. 654, 265 S.W. 529. And see, generally, Gomillia v. Missouri Pac. R. Co., Mo., 345 S.W.2d 202.

It is also urged that the ruling on the motion to dismiss is not reviewable here because evidence was introduced and considered, and no motion for a new trial was filed. It is true that Judge James permitted the introduction of various exhibits at his partial hearing; while we do not know whether the succeeding judge actually considered these, they were in the record. Counsel for respondents says that the motion stated grounds which required evidence, and that, since the motion was sustained generally without specifying any ground, a motion for new trial was required, citing such cases as State ex rel. Loving v. Trimble, 331 Mo. 446, 53 S.W.2d 1033, and State ex rel. Southwest Nat’l Bank of Kansas City v. Ellison, 266 Mo. 423, 181 S.W. 998. As we interpret the order sustaining the present motion, it stated rather clearly the ground of the ruling, — namely, that because of the dis-barments neither Osborne nor plaintiff could recover. This was a matter of judicial notice and admission. Moreover, our Rule 73.01(d) permits a consideration of the sufficiency of the evidence in a case tried without a jury without the necessity of a motion for new trial. City of Mt. Vernon v. Garinger, Mo., 395 S.W.2d 214, 215. If that is permissible in reviewing a case tried on the merits, certainly the same principle should be applicable to a ruling on a motion to dismiss. The point is denied.

Respondents make the further point that the assignment to plaintiff was invalid because it was in part an assignment of an executory contract for personal services. It is true, generally, that an executory contract for personal services which involve special knowledge, skill or a relation of personal confidence, may not be assigned without the consent of both parties. 6 C.J.S. Assignments § 26, pp. 1074-1075; Allied Pipe Line Corp. v. Studley, Mo.App., 191 S.W.2d 317. The rule is applicable when the personal qualities and acts of “one of the parties form a material and ingredient part of the contract.” Allied case, supra. We doubt that the location, relocation, production and transportation of witnesses and clients were matters of such special knowledge or skill as to be governed by the rule; but, so far as the present petition is concerned, it is alleged that Osborne agreed to perform such services, and that thereafter Osborne, not plaintiff, performed all such services as he was requested to perform. Under the allegations, it is doubtful if the obligation was transferred but, in any event, the performance was not delegated. This contention was not and is not a sufficient ground for sustaining the motion to dismiss; if it was and is of any substance, evidence would be required to develop it.

We reach the ultimate question, — namely, may a disbarred attorney recover anything as compensation for services rendered under contingent fee contracts which he did not complete prior to his disbarment? Under the majority rule he certainly may not recover against his client, for it is said that he has been guilty of conduct legally equivalent to an abandonment of the case before completion. Kimmie v. Terminal R. Ass’n of St. Louis, 344 Mo. 412, 126 S.W.2d 1197; In re Woodworth (D.C.N.Y.), 15 F.Supp. 291; same case on appeal, CA 2, 85 F.2d 50; Royden v. Ardoin, 160 Tex. 338, 331 S.W.2d 206, and Fletcher v. Krise, 73 App.D.C. 266, 120 F.2d 809. In Kimmie the actual claim was against a fund deposited in court; there the court quoted with approval from Woodworth, 85 F.2d at loc. cit. 50, and from the two South Dakota cases, Egan and Davenport; in conclusion, the court said, loe. cit. 1201: “In the instant case the claimant, as a result of misconduct, could not continue as the attorney for Kimmie. The misconduct for which he was suspended was voluntary conduct on his part. In other words, his suspension was equivalent to a voluntary abandonment of his contract of employment, and for that reason he cannot recover for services, and he has no lien on the $15,000 fund in the registry of the court.” That was a decision that the attorney could not recover any part of the client’s total recovery, either on contract or quantum meruit, but in so far as the opinion might be considered as precluding recovery on the contract of a succeeding lawyer, it would seem to be dictum. The South Dakota cases, Egan v. Waggoner, 41 S.D. 239, 170 N.W. 142, and Davenport v. Waggoner, 49 S.D. 592, 207 N.W. 972, 45 A.L.R. 1126, held that there could be no recovery against the original attorney who employed the plaintiff to assist him in the case, although at that time there was an agreement to divide the fee fifty-fifty. It would seem, however, that the agreement there was made at a time when no disbarment was contemplated by anyone, and thus it might be said that the employing attorney stood in the same position as his client, and that he, too, had been abandoned.

In New York the law is said to be unsettled on the question, but the possibility of a recovery for services rendered prior to disbarment is certainly not precluded, perhaps on quantum meruit. Gary v. Cohen et al., Sup., 231 N.Y.S.2d 394. The California case of Hardy v. San Fernando Valley Chamber of Commerce et al., 99 Cal.App.2d 572, 222 P.2d 314, seems also to leave the law there somewhat “unsettled,” although the court did not so state; the rather clear inference was left that, while a disbarred attorney may not recover his full contingent fee as upon the contract, he may be permitted to recover the reasonable value of services previously performed.

In 1951 Chief Justice Vanderbilt wrote a rather illuminating opinion on the subject for the Supreme Court of New Jersey. Stein v. Shaw, 6 N.J. 525, 79 A.2d 310. Therein he held that a disbarred attorney could recover from his client the reasonable value of services performed under a contingent contract prior to his disbarment. The disbarment was for causes not connected with the defendant’s litigation, which fact the court noted. The defendant had. employed other counsel independently, following the disbarment. That court disagreed with the theory espoused in Davenport and Woodworth, supra, that disbarment constituted a voluntary abandonment without cause; it held that, in fact, when the order of disbarment makes further performance impossible, there is an automatic termination of the contract by operation of law analogous to those cases where death, illness or insanity has intervened. It further held that the denial of all compensation for services rendered prior to the disbarment would constitute retroactive punishment through economic considerations, which was never intended in disciplinary proceedings.

In the present case plaintiff is not seeking to enforce a recovery from the clients who executed the original contingent fee contracts; nor is he seeking to establish a lien upon a fund paid into court by the clients or on their behalf. We are not required here to accept or reject the majority or minority rule on that question. Plaintiff here is seeking to enforce an oral contract allegedly made with his assignor by other attorneys, who, with their eyes open and with full knowledge that Osborne was about to surrender his license (as specifically alleged), accepted five of his cases for further handling, and agreed to pay him a part of all fees eventually received in the specified cases. Osborne’s disbarment certainly did not constitute an abandonment of that contract, voluntary or involuntary, for it was made in contemplation of disbarment, and the petition alleges full performance by Osborne. In this situation Kimmie is not controlling, nor is any other case of those cited and discussed really applicable, except possibly Davenport. We decline to follow it under these circumstances. Both parties have failed to realize the very material distinction between the facts of this case and the facts of substantially all of those cases cited and discussed. This opinion may be inconsistent with certain language used in our prior opinion, Sympson v. Rogers et al., Mo., 314 S.W.2d 717, but it is not inconsistent with the ultimate conclusion there or with the result. We do not hold, nor do we need to hold, that a disbarred attorney may recover any amount directly against his former client on a contingent fee contract.

Lastly, defendants contend that they are prohibited by Rule 4.34 and our decisions such as In re Ellis, 359 Mo. 231, 221 S.W.2d 139, from dividing their fees with either Sympson or Osborne as laymen. Ordinarily, that is true, but the situation here is unusual. By one allegation of this petition defendants are said to have agreed with Osborne, while he was a lawyer, to pay to him a portion of the fees they might eventually receive for his legal services already rendered and, in part, for such services as he might thereafter render which a layman could perform. At another point the petition alleges that Osborne and defendants agreed that Osborne had, by his legal services already rendered, earned one-half of the fees. While we fully recognize, In re Randolph, Mo., 347 S.W.2d 91, certiorari denied 368 U.S. 916, 82 S.Ct. 196, 7 L.Ed.2d 132, that a lawyer may not split fees with a layman, the agreement of defendants here was made with Osborne as a lawyer and chiefly, it would seem, for legal services already rendered. The division of fees in consideration of those services would not come within the prohibition of the rule. When and if this case is tried, the court may determine from the evidence whether the rendition of lay services in the future constituted any substantial part of the consideration for the agreement to divide the fees, or whether that part of the agreement was merely incidental. If the former, the agreement was invalid; if the latter, it may stand. The allegations of the petition alone do not afford us a sufficient ground for an intelligent ruling.

Much is said in the briefs concerning plaintiff’s motions to strike sundry parts of the answer and his motion for the production of files and documents. After sustaining the motion to dismiss, the court overruled both of these motions; at that time they had become moot. The cause had been dismissed with prejudice. If the points made are meritorious, new motions may be filed when the case is returned to the trial court. We do not propose to indicate any rulings or views concerning those motions on this appeal, aside from what we have said on the merits. Appellant’s motion to “Strike or Disregard” parts of respondents’ brief is overruled.

The judgment is reversed; the trial court is directed to overrule the motion to dismiss and permit further proceedings to be taken in the usual course.

All of the Judges concur.