text:
    B. F. OHMES, d/b/a Perrytex Communications Company, and City of Perryton, Appellants, v. GENERAL TELEPHONE COMPANY OF the SOUTHWEST, Appellee.
    No. 7404.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 16, 1964.
    Rehearing Denied Dec. 14, 1964.

      Allen, Allen & Reavis, Lemon, Close & Atkinson, Perryton, for appellants.
    Holdridge & Preston, San Angelo, for appellee.
   DENTON, Chief Justice.

This appeal, resulting from three separate cases filed in the trial court, involves the validity of a city ordinance which would require General Telephone Company of the Southwest to interconnect its facilities with appellant B. F. Ohmes’ mobile radio system. The trial court held the City of Perryton was without authority to require General to interconnect its facilities with Ohmes’ mobile radio systems, and that such ordinance was invalid.

Ohmes is a licensed radio common carrier and operates in the Perryton area. General Telephone operates a telephone system under a franchise from the City of Perryton. Ohmes’ company receives messages from its customers by way of mobile radios, and his dispatcher relays these messages to their proper destinations. Ohmes requested the telephone company to connect his radio system to that of the telephone system in order to enable Ohmes’ customers to talk directly from the field to others without the necessity of going through a ■dispatcher. General refused to make the interconnection. Upon Ohmes’ application, and after a hearing, the City of Perryton ordered General to interconnect with Ohmes’ mobile radio facilities. This order was appealed by General to the District Court. In the meantime, the City passed ’Ordinance No. 337 which required telephone ■companies using the City’s streets and alleys to interconnect their land lines with lines -of licensed radio common carriers who make application therefor and offer to pay the prescribed rates. Upon General’s refusal to comply with the ordinance, Ohmes sought an injunction in a separate suit in the district court to require General’s compliance with the ordinance. In a third suit General sought an injunction against the City to enjoin the enforcement of the ordinance. All three suits are consolidated for the purposes of this appeal.

The authority of the City to enact Ordinance No. 337 is determined by an interpretation of Article 1119 and Articles 1426-1432, Vernon’s Ann.Civ.St., which relate to regulation of telephone and telegraph companies by city commissioners and commissioners’ courts. The material statutes are as follows:

“Art. 1426. Transfer of messages
“All companies and corporations that own or operate telephone or telegraph lines for the purposes of transmitting messages from one point to another, are hereby required to arrange for conversations or transfer of messages as hereinafter provided.
“Art. 1427. Telephone connections
“All persons, companies, firms or corporations doing a telephone business in this State shall be compelled to make physical connections between their toll line at common points, for the transmission of messages or conversations from one line to another. Such connection shall be made through the switchboard of such persons, companies, firms or corporations, if any is maintained at such points, so that persons so desiring may converse from points on one of such lines to points on another.”
“Art. 1429. Transfers excepted
“In no case shall any message be transferred from one line to another against the will of the company first handling the same, when it is possible for such company to deliver said message direct to the party for whom it is intended by way of the line or lines operated and owned by said company. No telegraph or telephone company shall, under the provisions of this subdivision be compelled to receive from the wires or lines of any other telegraph or telephone company and convey to its final destination any message originating at any point on its own lines.”

The pertinent part of Article 1119 reads as follows:

“The governing body of all incorporated cities and towns in this State incorporated under the General Laws thereof shall have the power to regulate, by ordinance, the rates and compensation to be charged by all persons, companies, or corporations using the streets and public grounds of said city or town, and engaged in furnishing water, gas, telephone, light, power, or sewerage service to the public, and also to prescribe rules and regulations under which such commodities shall be furnished, and service rendered, and to fix penalties to enforce such charges, rules, and regulations.”

It is appellants’ contention the City had authority to order the interconnection by virtue of Article 1119 giving it authority “to prescribe rules and regulations under which such commodities shall be furnished, and service rendered, and to fix penalties to enforce such charges, rules, and regulations.”; together with the requirements of Articles 1426 and 1427 of telephone couh panies to make physical connection between their toll lines at common points for the transmission of messages from one line to another. Appellants concede the applicable statutes were passed many years prior to the establishment of mobile radio services such as offered by Ohmes, but argue the intent of the statutes applies to such modern services. Although no case has been cited which supports this contention, appellee by implication seems to agree.

The statutory requirement that telephone companies arrange for transfer of messages must be viewed in light of the language of the material statutes. In the first place, by the clear language of the statutes the interconnection required applies only between the company’s “toll line at common points,” Article 1427. These statutes have no application to interconnections between local telephone services of two communications systems. Telephone toll service is defined by the Federal Communication Act as a service not only between different exchange areas, but it is a service for which there is made a separate charge not included in the contract with subscribers for exchange service. Southwest-em Bell Telephone Co. v. United States, D.C., 45 F.Supp. 403. As seen from the language of Article 1429, no telephone company shall be compelled to receive from the wires or lines of another telephone company and transfer or convey the message to its final destination if the message originates at any point on the line of the company being requested to interconnect. We think this language precludes Ohmes’ requested interconnection. Under this record General Telephone also furnishes land lines and mobile telephone services to customers of their own in the Perryton area. Not only would Ohmes’ request result in messages being conveyed which originate on General’s own line, but it would have the effect of requiring General to provide equal facilities to a competitor of the same service in the same area. The Tennessee Supreme Court in Home Telephone Co. v. People’s Telephone & Telegraph Co., 125 Tenn. 270, 141 S.W. 845, 42 L.R.A.,N.S., 550, dealt with a similar question with the following language:

“Telephone and telegraph companies are common carriers of intelligence, and must give the same service on the same terms to all who apply therefor, without partiality or unreasonable discrimination.”
“But this does not mean that a telephone company is bound to permit another telephone company to make a physical connection with its lines for the purpose of using them as its own subscribers use them. There is a wide difference between a telephone company’s transmitting to any point on its line equally and indiscriminately the messages of all companies that offer them and are willing to pay the same fare for the same service, and admitting such outside companies or their patrons to the same use of its lines that its own patrons are entitled to.”

The Texas Supreme Court interpreted the same statutes involved here in Southwestern Telegraph & Telephone Co-v. State, 109 Tex. 337, 207 S.W. 308. Although the court there upheld the penalties assessed for a violation of a city ordinance requiring interconnection by Southwestern Telegraph & Telephone with Paducah Telephone Company’s toll line, the court limited the application of the city’s ordinance:

“It is also clear that under the act it could not be required to afford its service for the transmission of any message or conversation originating at a point on its own line, such, for instance, as Paducah. The order is to be so construed.”

We think this same limitation must be placed on the ordinance in question and such limitation will invalidate the ordinance requiring the interconnection being sought by Ohmes. The City’s authority to “prescribe rules and regulations” under Article 1119 is limited and qualified under the plain terms of Articles 1426-1430.

Appellants’ contention the trial court erred in declaring Ordinance No. 337 invalid is also without merit. Being of the opinion the City was without authority to pass the ordinance to require the interconnection' complained of, the ordinance would be invalid. The ordinance having been passed without authority on the part of the City of Perryton is void, and the attempted enforcement of such ordinance is an invasion of the property rights of the telephone company and can be enjoined. Goar v. City of Rosenberg, 53 Tex.Civ.App. 218, 115 S.W. 653; City of Brownwood v. Brown Telegraph & Telephone Co., 106 Tex. 114, 157 S.W. 1163; State ex rel. Brauer v. City of Del Rio, (Tex.Civ.App.), 92 S.W.2d 287.

Being of the opinion the record reveals no reversible error and that the judgment entered by the trial court was correct under the pleadings and evidence, such judgment is affirmed.

Affirmed.

CHAPMAN, J., not sitting.


source: Caselaw Access Project

author: BROADDUS, Presiding Judge.

license: Public Domain

text:
    Leo MAAG, Warren Faris, J. T. Rutledge, Ezra Sehlke and Edwin Sehlke, Individually, and Doing Business As Chariton County Contractors, Appellants, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent.
    No. 23995.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Hulen & Hulen, Moberly, for appellants.
    Thomas J. Downey, Asst. Counsel, Jefferson City, for respondent.
   BROADDUS, Presiding Judge.

By an Order dated October 11, 1961, Hall & Riley Quarries & Construction Company, Booneville, Missouri; Land Construction Company, St. Joseph, Missouri; Chariton County Contractors, Salisbury, Missouri; Leo Maag, Salisbury, Missouri; Warren Faris, Keytesville, Missouri; J. T. Rutledge, Salisbury, Missouri; and Ezra Sehlke and Edwin Sehlke, doing business as Sehlke, Keytesville, Missouri, were cited to appear before the Public Service Commission on October 23, 1961, to answer charges that they have provided or procured, aided or abetted in transportation services at rates other than those named in tariff schedules lawfully on file with the Commission;, have performed for-hire transportation service in vehicles to which have not been affixed annual license required in Section 390.136, RSMo 1959, V. A.M.S.

On October 23, 1961, a hearing was held and on March 12, 1962, the Commission issued its Report and “Ordered: That Leo Maag, Warren Faris, J. T. Rutledge and Ezra Sehlke, doing business as Chariton County Contractors, be and they are hereby ordered to cease and desist in providing transportation service such as found by the Commission in this case to constitute transportation for compensation.”

Thereafter, on April 16, 1962, a writ of certiorari was duly issued to the Public Service Commission by the Circuit Court of Cole County, and a return to said writ was made. By agreement of the parties the cause -was submitted to the Court on the Record. Thereafter, on September 23, 1962, the Court affirmed the order of the Commission and this appeal followed.

An examination of the transcript discloses that the Commission’s Finding constitutes a fair statement of the facts and we adopt it. It is as follows:

“Land Construction Company, which will frequently be referred to herein as the Contractor, was the successful bidder on a Missouri State Highway Commission project calling for the paving of 8.593 miles of U. S. Highway 65 in Carroll County between Carrollton and the Missouri River with 24-foot asphaltic concrete, designated as Project Rt. 65, Sec. 17(2). Bids were received on July 27, 1961, and the award was made on August 8, 1961. Approximately 30,000 tons of crushed stone are required to complete the project.

“Hall and Riley Quarries & Construction Company, which will frequently be referred to herein as the Quarry Company, is engaged in the business of producing and selling aggregate used in highway construction. It operates a quarry approximately six miles south of Marshall, Missouri, at which stone is produced which meets the Highway Department specifications for asphaltic concrete.

“The following respondents own and operate one or more dump trucks and are the holders of certificates of convenience and necessity issued by the Commission authorizing the transportation of bulk commodities in dump trucks as common carriers between points in Missouri, including Carroll County: Leo Maag, Certificate No. T-13,590; Warren Faris, Certificate No. T-604; J. T. Rutledge, Certificate No. T-13,398; and Ezra and Edwin Sehlke, d/b/a Sehlke, Certificate No. T-13,591. Each of these trucker respondents has on file with the Commission the necessary insurance and tariff schedule and is fully qualified to operate as a common carrier over the highways by motor vehicle. The orders granting certificates to these respondents relate that the applicants for such authority have been engaged in the business of transporting bulk commodities in dump trucks for several years.

“Chariton County Contractors is the fictitious name used by a partnership consisting of Leo Maag, J. T. Rutledge, Warren Faris and W. N. (Ezra) Sehlke, and will frequently be referred to herein as the Partnership. An application for registration of the fictitious name was filed with the Secretary of State’s Office on September 11, 1961, and shows percentage of ownership as follows: Leo Maag, 40 percent; J. T. Rutledge, 30 percent; Warren Faris, 10 percent and E. N. Sehlke, 20 percent. Application was also made by the Partnership on September 11, 1961, to the State Department of Revenue for a code number used by retailers in paying sales or use tax. The application shows the kind of business to he “trucking” and indicates the business was commenced on September 11, 1961.

“On August 5, 1961, a letter signed by W. E. Herzog, Vice-President of the Contractor, was addressed to the Partnership, Attention Mr. Maag, confirming acceptance of a quotation of $2.30 a ton for stone to be used on the project designated as Rt. 65, Sec. 17(2), Carroll County. On the lower left-hand side of the letter, in a space provided for that purpose, was the acceptance of the terms of the quotation signed on behalf of the Partnership by Leo Maag. The letter agreement reads as follows:

‘This is to confirm our acceptance of your quotation of $2.30 per ton for stone to be used on the subject project, delivered to our plant set-up site within a distance of one mile north of the Missouri River Bridge, on Route 65, Carroll County, Missouri.
‘Our acceptance of your quotation is based on your committment that adequate trucks will be available to haul the stone from the Hall & Riley Quarries and Construction Company Quarries located approximately six miles south of Marshall, Missouri, at a rate which may possibly require 1,000 tons per day. (Approx. 30,000 T. will be required.)
‘Further, your quotation will include all Insurance for both Payrolls and Liability. We will expect Certificate of your Liability Insurance to be sent to us for our files. We will pay you at any time you present us with a statement covering materials delivered to our stockpile area, and approved by the Missouri State Highway Commission, and we would suggest the billing be made the first of each month, which we will pay by the tenth. However, if payment is desired more frequently, we will expect to pay accordingly.
‘The above acceptance of your quotation is based on a $1.20 per ton price, and $1.10 per ton haul price. The acceptance is also based on the fact that the work on the project will be awarded to us by the Missouri State Highway Commission. As of this date, the work has not been awarded.
‘Please indicate your acceptance by signing the original of this letter, and returning it to us for your files.’

“The letter indicates that a copy was sent to the Quarry Company, attention Mr. D. L. Riley. The original of the letter was in the files of the Contractor and the duplicate was in the possession of Mr. Maag.

“On August 8, 1961, a letter signed for the Partnership by Leo Maag was addressed to the Quarry Company, attention Mr. D. L. Riley, confirming the acceptance of a quotation of $1.20 a ton for the stone to be used on Rt. 65, Sec. 17(2), Carroll County, Missouri. The letter reads as follows:

‘This is to confirm our acceptance of your quotation of $1.20 per ton stone price, to be used on Rt. 65 Sec. 17(2), Carroll County, Missouri.
‘Our acceptance is based on your committment to supply approximately 1,000 tons per day or a total of approximately 30,000 tons.
‘We suggest you mail us a statement on the first of" each month for the material we have received and we will pay by the fifteenth.
‘This acceptance is also based on the fact that the work on this project will be awarded to Land Construction Co., by the Missouri State Highway Commission. As of this date, the work has not been awarded.
‘Please indicate your acceptance by signing the original of this letter and returning it to us for our files.’

“On the lower left-hand side, in a space provided for that purpose, was the acceptance on behalf of the Quarry Company signed by D. L. Riley. The letter indicated that a copy was sent to the Contractor, attention Mr. W. E. Herzog, Vic-President.

“Delivery of the stone under the agreed terms began on September 11, 1961. Under date of September 30, 1961, the Contractor was billed by the Partnership for 4,473.05 tons of rock at $2.30 a ton, or $10,288.02 plus $205.76 state sales tax for a total amount of $10,493.78. This bill was paid on October 7, 1961.

“A check payable to the Quarry Company and drawn on the Partnership account by Leo Maag, in the amount of $5,376.66, was issued on October 9, 1961 (Resp’s. Ex. D), and a receipted invoice showing that the above amount represented payment in full for 4,473.05 tons of rock at $1.20 a ton was issued by the Quarry Company on October 12, 1961. The check was deposited in the account of the Quarry Company in the Kemper-State Bank, Booneville, Missouri, on October 18, 1961.

‘The quarry at which the stone was produced is located approximately six miles south of Marshall, or 28 miles from the site at which the stone was stockpiled. Transportation of the stone was by dump trucks. The Partnership owns no motor vehicles. Of the vehicles used in performing the transportation, four are owned by Leo Maag, three by J. T. Rutledge, one by Warren Faris and two by Ezra Sehlke. These vehicles are not leased to the Partnership nor are they in any way identified as being operated by the Partnership. Each of the vehicles has the name and address of its owner and his P. S. C. certificate number painted on its side, although there is some evidence that for some or all of the hauls the certificate number was taped over. Annual license stickers were not affixed to the vehicles.

“In transportation performed for account of the Partnership, each of the individual truck owners pays his own driver, including social security and workmen’s compensation insurance, and all operating expenses for the truck. Each owner provides for his own liability insurance and the Partnership is not named as a co-insured.

“All of the records of the Partnership are kept by Leo Maag in the office of the Leo Maag Trucking Service at Salisbury. Mr. Maag has one office clerk but the Partnership has no employees. Money received by the Partnership is deposited to its credit in the Salisbury Savings Bank. Checks are drawn on this account by Mr. Maag. After payment from the account for stone purchased, the balance is distributed to the individual truck owners on the basis of the number of tons each has transported, less 5 cents a ton which is retained for office expense and other service provided by Mr. Maag. After payment to the Quarry Company for the 4,473.05 tons of rock delivered during the period of September 11-29, 1961, there was a balance of $4,920.36 remaining of the amount paid by the Contractor to be distributed to the truck owners and for office expense. The following table shows the number of tons of rock transported by the individual truck owners during the period of September 11-29, 1961, the amount due the truck owners at $1.05 a ton, the balance remaining for office expense and other services provided by Mr. Maag, and the amount that would be due each truck owner if the dump truck rate prescribed by the Commission had been charged:

“In appendix ‘A’ to this Report and Order, there is shown the number of loads transported on the vehicles of each truck owner on each work day during the period September 11-29, 1961.

“The tariff charges shown in the above table were computed at a rate of $1.37 a ton, which is the rate prescribed by Order of September 30, 1958, in case T-16,446 for a distance of 28 miles from an origin in Saline County. The prescribed rates have been published for account of the respondent carriers, in tariff schedules filed with the Commission in the manner required by law.”

The conclusions of the Commission’s Order which are being attacked by appellants are as follows:

“The principal question to be decided by the Commission in this case is whether the transportation of stone from the quarry to the stockpile is common carriage and subject to the laws applicable thereto or private carriage which is exempt from regulation by the Commission.

“It is the contention of the respondents that the Partnership is engaged in buying and selling rock and that transportation of the rock is performed by it as private carriage. The term ‘private carrier’ is defined by Section 390.020(7), RSMo. 1959, to mean ‘any person engaged in the transportation by motor vehicle upon public highways of persons or property, or both, but not as a common carrier by motor vehicle or a contract carrier by motor vehicle; and includes any person who transports property by motor vehicle where such transportation is incidental to or in furtherance of any commercial enterprise of such person, other than transportation.’
“There is no service performed by either the Partnership or the individuals who comprise it from which a profit can be gained except the service of transportation. The only investment of the individual partners is in dump trucks. There is no investment by the individuals or the Partnership in any stock in trade, payment for the stone being made to the quarry only after it is paid by the Contractor. The usual risks in buying and selling a commodity are not involved. Both the source of the stone and the market for it have been assured in advance. It is the conclusion of the Commission that the transportation is not incidental to or in furtherance of the business of buying and selling stone but, to the contrary, buying and selling of the stone is for the sole purpose of furthering the principal business of transportation for hire.
“The Partnership is not engaged in the transportation of property by motor vehicle. It owns no vehicles and the vehicles used in its business are not under lease to it. The vehicles carry no identification as being operated by the Partnership and there is no indication of any supervision or control over the vehicles by the Partnership. Transportation is purchased from the owners of the vehicles in a specified amount per ton, which is the identical method of compensation of for-hire carriers, differing only in that the amount in this case is substantially less than the rate prescribed for common carriers by motor vehicle for a similar haul. In fact, it seems abundantly clear the only motive for such an arrangement was to cut the rates, which the truck owners would have had to charge if the transportation had been rendered under their Public Service Commission authorities, and thereby obtain a competitive advantage over other carriers. It is the conclusion of the Commission that as to each of the loads listed in appendix ‘A’ to this Report and Order, the individual truck owners were engaged in the transportation by motor vehicle of property for hire or compensation upon the public highways as common carriers; that such transportation has been performed with vehicles operated without the annual license required by Section 390.136, -RSMo.1959; and that such transportation has been rendered for rates other than published in the carriers’ tariff •schedules in violation of Section 387.-100, RSMo.1959.” (Italics ours)

The function of the Courts in reviewing orders of the Public Service Commission is to determine the lawfulness or reasonableness of the order. The lawfulness of the order depends primarily on whether the Commission had statutory authority and power to issue the order; and for the order to be reasonable it must have been based upon competent and substantial evidence upon the whole record. State ex rel. City of West Plains v. Public Service Commission, 310 S.W.2d 925, Mo.Sup.; State ex rel. Chicago, Rock Island & Pacific Railroad Company v. Public Service Commission, 312 S.W.2d 791, Mo.Sup.

'In a recent case before this court reviewing an order of the Commission we discussed the basic principles of review as follows: State ex rel. Associated Transports, Inc., v. Burton et al., Mo.App., 356 SW.2d 115:

“(1) The order of the Commission in this case is prima facie lawful and reasonable. Section 386.270 V.A. M.S.; State ex rel. Egan v. Public Service Comm., Mo.App., 319 S.W.2d 917. In seeking to set aside the determination made by the Commission, Associated has assumed the burden laid upon it by statute to show by clear and satisfactory evidence that the order complained of is unreasonable or unlawful. Section 386.430 V.A.M.S.; State ex rel. Dairyland Transport Corp. v. Public Service Comm., Mo. App., 350 S.W.2d 825; State ex rel. Transport Delivery v. Burton, Mo. App., 317 S.W.2d 661.
“(2) The issues raised on this appeal .are not triable de novo, by this couyfc The only question for our determination, relative to the merits of the case, or that the trial court could have determined, is whether or not the Commission’s order is reasonable and lawful and supported by competent and substantial evidence. Section 386.510 V.A.M.S.; State ex rel. Hotel Continental v. Burton, Mo.Sup., 334 S.W.2d 75; State ex rel. Transport Delivery Co. v. Burton, Mo.App., 317 S.W.2d 661. As a reviewing court, we may not substitute our judgment on the evidence for that of the Commission. ‘Upon appeal to this court on a matter of this character we do not determine the question presented as though we were the Commission. We only determine whether or not the order made by the Commission is reasonable and lawful, in light of the facts and circumstances properly in evidence before it’. State ex rel. Shepherd et al. v. Public Service Commission, Mo.App., 142 S. W.2d 346; State ex rel. Dairyland Transport Corporation v. Public Service Commission, Mo.App., 350 S.W.2d 825.”

If the partnership is to successfully claim a “private carrier” status it must be engaged in a commercial enterprise other than transportation, and the transportation of rock by the Partnership must be incidental to or in the furtherance of such commercial enterprise. The Partnership claims that its principal business is that of supplying rock. It is contended that the dump truck transportation is merely incidental to or in furtherance of its commercial enterprise as a rock supplier.

The claim of the Partnership that it is engaged in the principal business of a rock supplier is overwhelmingly repudiated by the record. The rock for. the road project was material for asphaltic concrete mix and had to meet definite specifications. Rock produced by the Hall & Riley Quarries ,& Construction -Company met the .required specifications ;and this company had submitted a bid to the road Contractor to supply the rock for $1.20 per ton. The contract between the Partnership and the road Contractor provided that the source of the rock was to be the Hall & Riley Quarries & Construction Company and that the rock price was to be $1.20 per ton. The Partnership’s only witness before the Commission testified that it was agreed that Hall & Riley Quarries & Construction Company was to furnish the rock. A Witness for the road Contractor testified that the road Contractor exercised control over the source of rock and that the road Contractor had required in this case that the rock come from Hall & Riley Quarries & Construction Company. It therefore appears beyond a shadow of a doubt that Hall & Riley Quarries & Construction Company was the rock supplier rather than the Partnership.

Inasmuch as the Partnership was not engaged in a commercial enterprise such as a rock supplier the transportation performed could not have been incidental to or in the furtherance of such a commercial enterprise. The record clearly demonstrates that the principal commercial enterprise of the Partnership was in fact the transportation of rock by dump trucks. In its application to the Department of Revenue for a sales tax number the Partnership stated that it was in the trucking business. The principal service which the road Contractor expected from the Partnership was transportation of rock. The Partnership’s witness testified that the contribution of the individual partners to the Partnership’s activity was transportation, and the profits of the Partnership are distributed to the individual members according to the number of tons hauled by each member. The Partnership’s contract with the road Contractor specifically provided payment of $1.10 per ton for hauling the rock. Thus, the record fully supports the Commission’s conclusion that the principal business of the Partnership and its individual members is the transportation of rock for hire or compensation upon the public highways.

Although the principles outlined in the Commission’s order have never been either approved or rejected by the Appellate Courts of this State, those principles have been approved by the Federal Courts in construing similar provisions of the Interstate Commerce Act. See Interstate Commerce Commission v. Asphalt Supply Co., D.C., 152 F.Supp. 559; A. W. Stickle & Co. v. Interstate Commerce Commission, 10 Cir., 128 F.2d 155; Scott v. Interstate Commerce Commission, 10 Cir., 213 F.2d 300.

We have reached the conclusion that the Order of the Commission is in all respects lawful and reasonable and that the judgment of the Circuit Court upholding it should be affirmed. It is so ordered. All concur.


author: MAUGHMER, Commissioner.

text:
    Harold JONES, Respondent, v. Billy JONES, Appellant.
    No. 24157.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964

      - J. Door Ewing, Joe Beavers, Ewing and Beavers, Maryville, for appellant.
    Robert L. Ross, Albany, for respondent.
   MAUGHMER, Commissioner.

Plaintiff had a verdict and judgment for $15,000 as damages for injuries to his right hand sustained while pulling on the belt of defendant’s combine, trying thereby to assist in starting the motor. Plaintiff, Harold Jones, on December 1, 1962, when the accident occurred, was 64 years of age and the father of defendant Billy Jones. His principal occupation for 16 years had been managing and operating a small town produce house. However, he lived on a farm and prior to his produce house venture had been a farmer, but had mostly used horse-drawn machinery in his farming operations although he owned a tractor, disk and plow. He had never owned a combine or other types of farm machinery which were equipped with belts and pulleys.

Defendant was a farmer, owned two combines and in addition to harvesting his own crops, did custom combining. The machine on which plaintiff sustained his injuries was a 1958 model self-propelled John Deere combine. Defendant had left it in plaintiff’s yard and came by about 7:00 a. m. on the day in question to do some custom work (not for plaintiff). The machine was equipped with a self-starter on a battery. December first was described as a cold morning and the motor failed to start in response to defendant’s efforts with the starter. Defendant’s father — the plaintiff— was just ready to leave for ■ his produce house. Defendant asked him to “pull down on the belt and get it loose”. From his location at the starter, defendant could see neither plaintiff nor the belt. If the belt were pulled and moved it would lessen the load on the starter. Plaintiff on a few occasions previously had used this method to aid in starting the combine. When the implement came from the factory it was equipped with a metal shield over the belt and pulley — a safety device designed to prevent a hand, arm or clothing from becoming entangled. Defendant, a few years previously in an effort to facilitate making some repairs, had removed this shield and had never replaced it. Plaintiff testified he never knew the shield had originally been there or that it had been removed.

Plaintiff pulled on the belt as directed and defendant pressed on the starting button. Plaintiff’s right hand became entangled in . the pulley under the belt. He yelled “stop”. His wife and son got his hand out, took him to the doctor and then to the hospital. The ■ testimony was that his little finger was • amputated, that except for the thumb, he has no use of the hand, it gets cold and is . painful all the time.

Appellant asserts first that his motion for directed verdict at the close of all the evidence should have been sustained because “the evidence conclusively shows plaintiff was guilty of contributory negligence and assumed the risk of his injury, as a matter of law”. It apparently is conceded that plaintiff’s evidence amounted to a submis-sible case unless plaintiff was guilty of contributory negligence as a matter of law. Defendant invites our attention to Chisenall v. Thompson, 363 Mo. 538, 252 S.W.2d 335. In that opinion the Supreme Court quotes (p. 337) with approval the following from 65 C.J.S. Negligence § 120, page 722:

“ ‘The duty to exercise ordinary care to avoid injury includes the duty to exercise ordinary care to observe and appreciate danger or threatened danger. A person is required to make reasonable use of his faculties of sight, hearing, and intelligence to discover dangers and conditions of danger to which he is or might become exposed, and one injured as a result of his failure to use his faculties to observe and discover a danger which would have been observed and discovered by an ordinarily prudent person is guilty of contributory negligence.’ ”

The court reversed a judgment for Chis-enall who had injured his hand cleaning stalks from the rollers of a corn picker. That case is quite different from ours. Chisenall was defendant’s farmhand, had operated the corn picker for about eight days, and was familiar with it. The master had placed the work entirely in charge of the servant and permitted him to perform it in his own way. He had not given any specific directions as to the method to be' used in cleaning the picker. In our case we have no relation of master and servant. Plaintiff was not particularly familiar with the machine and he had been specifically directed to “pull on the belt”. In this latter respect our case is more akin to Beckett v. Kiepe, Mo.App., 369 S.W.2d 258, where defendant, employed to construct plaintiff’s barn, directed plaintiff to “slip under a pole and ride it down”. The pole fell and plaintiff was injured. We quote from the opinion of this court (page 262) affirming a judgment for plaintiff:

“In all of the cases cited by defendant in support of his argument that plaintiff was contributorily negligent as a matter of law there was no ‘request or invitation’ by the defendant to do the act nor was there any ‘reassurance by the defendant.’
“The courts have repeatedly held that under factual situations, somewhat similar in that the hazard and defect is more or less obvious to the plaintiff, the plaintiff is not contributorily negligent as a matter of law, but that it was a jury question. As said in the case of Hahn v. Flat River Ice & Cold Storage Co., 285 S.W.2d 539 (Mo.Sup.) : ‘Where one relies and acts upon, the directions and assurances given him' by another as to the proper manner of performing a task or operation, in relation to which the latter owes himi some duty as to his safety, it is ordinarily a question for the jury to resolve whether the directions and assurances: given were improper, and such as to' amount to negligence in the particular circumstances, and also whether the reliance upon the following out of them in the situation involved constituted contributory negligence.’ ”

Appellant invites our attention to Crandall v. McGilvray, Mo., 270 S.W.2d 793, as being controlling here. In that case plaintiff was a farmhand employed by defendant. He was familiar with the corn picker and knew it was dangerous to remove stalks-from the rollers with the power on, because when the obstruction was removed the rollers would start turning. Nevertheless, he did remove the obstruction while the power was on, caught his hand in the rollers and was injured. A directed verdict for defendant was upheld, the court ruling plaintiff guilty of contributory negligence as a matter of law. The opinion also states that plaintiff was not entitled to a submission on failure to warn. We quote on this subject from the syllabus:

“In action against employer for injuries sustained by mature farm hand experienced in operation of power machinery when fingers of right hand were caught in husking rollers of mechanical corn ' pickér when’ Ke' attempted to remove obstruction which had stopped operation of rollers without first disengaging power take-off, evidence failed to.make a case for jury on issue of defendant’s duty to warn of dangers known to him, in absence of showing by substantial evidence that injured employee did not know of or appreciate danger of thus removing obstruction.”

We believe that under the facts here the question as to plaintiff’s contributory negligence was for the jury and the motion for directed verdict was properly overruled.

The appellant’s four remaining assignments of error are attacks on. plaintiff’s verdict-directing Instruction No. 1. It is claimed this instruction (a) did not submit for jury determination all the factual elements essential to a plaintiff verdict; (b) failed to submit if the absence of the safety shield made it dangerous to pull on the drive belt; (c) failed to require a finding that plaintiff knew of the danger because ■the shield was no longer there and (d) the instruction failed to hypothesize the precise .acts of negligence but instead gave the jury the privilege of finding negligence gen■■erally.- We set but Instruction No. 1:

“The Court instructs the jury that if you find and believe from the evidence that on December 1, 1962, at about 7:30 A.M. defendant was the owner of a John Deere 45 self propelled combine which was parked on land owned by plaintiff in Worth County, Missouri and if you further find that defendant was attempting to start the motor of said self propelled combine and if you further find that defendant asked plaintiff to pull on the belt connecting the motor and the drive pulley and if you further find that plaintiff did pull •on said drive belt and that defendant at the same time engaged the starter on said combine and if you further find that said John Deere 45 self propelled combine was equipped with a shield approximately twice the diameter of the pulley when it was purchased by defendant and if you further find that the purpose of said shield was to prevent persons or objects from being caught in the belt and pulley and if you further find that on December 1, 1962 at about 7:30 A.M. said shield was not on said combine and if you further find that defendant did not warn plaintiff of the absence of said shield on said pulley and if you further find that defendant failed to exercise ordinary care and was negligent and if you further find that as a direct and proximate result of said negligence, if any, plaintiff sustained injuries, then your verdict will be for the plaintiff and against the defendant, unless you find the plaintiff guilty of contributory negligence or guilty of assuming the risk as set out in other instructions herein”.

As we read and understand the instruction it describes two possibly negligent acts. First, a specific direction by defendant for plaintiff to pull on the belt and, •second, no warning to plaintiff by defendant that the shield, a safety device installed by the manufacturer, had been removed. Then follows a requirement “and if you further find that defendant did not warn plaintiff of the absence of said shield on said pulley and if you further find that defendant failed to exercise ordinary care .and was negligent * * * It is true as appellant points out that the instruction would have been more nearly perfect gram.matically and as to legal technical compliance if the finding of negligence had been tied specifically to these two possibly negligent acts by the phrase “and thereby” .or “and that such acts” amounted to negligence and were not in the exercise of ordinary care. But as a practical matter was the jury, or the Court, or counsel misled or were the jury really restricted, as to negligence to these two items — that is — specific direction to pull on the belt and failure to advise as to the absence of the shield?, The instruction suggests nothing else as possible negligence, the pleadings declare nothing else, the evidence is so restricted, defendant’s Instruction D on contributory-negligence so limits the subject and of necessity nothing else could have been argued to the jury. In Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 499, it was stated:

“However, in the final analysis, the test is how the instruction will naturally be understood by the average men and women who compose our juries, Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Dell’Aria v. Bonfa, Mo., 307 S.W.2d 479.”

Appellant cites Endermuehle v. Smith, Mo., 372 S.W.2d 464. That was an intersection automobile collision case. The Court held (1) A humanitarian instruction should be clearly separated from any possible consideration in connection with another instruction requiring a motorist to exercise the highest degree of care since such failure would not defeat a humanitarian recovery; (2) When the submission of defendant’s counterclaim was on primary negligence of failure to look, his verdict-directing instruction must specifically restrict recovery to that hypothesized negligence and not to negligence generally where the evidence as heard referred to other acts of negligence which allegedly amounted to lack of proper care.

We shall consider one other case cited by appellant, Owens v. McCleary, 313 Mo. 213, 281 S.W. 682, was a malpractice case against a physician. Plaintiff’s main instruction directed the jury to determine whether “in making said treatment, the defendant carelessly and negligently injured the plaintiff”. Under the evidence liability could have been predicated only upon the mode of treatment or failure to keep the openings drained. The instruction did not refer to these alleged, supported and properly submissible acts of negligence. The Court therefore quite properly said about the instruction: “It permitted them to base a finding for plaintiff on any theory of negligence which they could construct or evolve out of their own minds, and was-therefore erroneous.”

The case before us is not one where several grounds of negligence are alleged but only one or two submitted. In such a situation a jury might be confused if the main instruction did not unequivocally and grammatically restrict the possible negligence findings to the fields of negligence submitted. In the case before us only two grounds of negligence were ever mentioned- — in the pleadings, by the evidence, in the instructions and by necessity, in the argument. Defendant’s instruction on contributory negligence mentioned only these two elements. Section 512.160(2), V.A.M.S. admonishes us that: “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action.’*(

We do not believe that the jury was misled or that the trial court committed any error materially affecting the merits of this action. In Fantin v. L. W. Hays, Inc., et al., Mo., 242 S.W.2d 509, 514, the Court through inadvertence failed to submit instructions defining the terms “negligence”. and “highest- degree of care”. The Court. said:

“And finally, in the absence of demonstration of prejudicial effect to the rights of the plaintiff it may not be said,, in the circumstances of this'case, that the inadvertent omission to read these definitions to the jury was sq prejudicially erroneous as to compel the-granting of a new trial of this cause. Mo.R.S.1949, Sec. 512.160, subd. 2.”

We find no reversible error and the judgment is' affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All .concur.


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    Judy M. LENHART, Plaintiff-Appellant, v. Earl H. RICH, Defendant, National Mutual Insurance Company, Garnishee-Respondent.
    No. 24053.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Richard W. Mason, St. Joseph, for appellant.
    Richard E. Martin, Hugh A. Miner, St. Joseph, for respondent.
   MAUGHMER, Commissioner.

This is a garnishment proceeding under which plaintiff Judy M. Lenhart seeks to collect her judgment against defendant Earl H. Rich from the respondent-garnishee, National Mutual Insurance Company. The trial court entered judgment for the insurer and plaintiff has appealed.

We summarize certain facts which were stipulated and undisputed. On August 4, 1962, an automobile owned by one Harry Rich and being operated by his son the defendant Earl H. Rich, collided with an automobile being driven by the plaintiff. On the date of the accident liability insurance policy number CA 33911, covering the Rich automobile and with Harry Rich, owner and father of defendant Earl H. Rich, as the named insured, was in full force and effect. The policy contains the following pertinent provisions:

“18. Assistance and Cooperation of the Insured — * * *. The insured shall cooperate with the company and, upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits”.
“Conditions
“7. Action Against Company — * * No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, * * ”.

It is agreed here and it is generally understood that the word “insured” or “named insured” as used in the policy includes any person using the automobile with the permission of the person designated by name as the named insured in the policy. The company in addition to assuming liability also agreed to defend any suits against the “insured”.

On September 28, 1962, the plaintiff Judy M. Lenhart filed in the Circuit Court of Buchanan County, Missouri, a suit against Earl H. Rich to recover damages for injuries allegedly sustained by her in the collision of August 4th. In response to that suit the National Mutual Insurance Company (present garnishee) appeared by its attorneys Miner and Martin of St. Joseph, Missouri, filed answer, undertook the defense and stipulated that Earl H. Rich was at the time of the accident operating the automobile with the permission of his father Harry Rich and was an “insured” under the terms of the policy. The attorneys for the company interviewed Earl H. Rich and Harry Rich, procured a copy of the police report of the accident, took the deposition of plaintiff, personally interviewed the police officers who had investigated the accident, interviewed one Marvin Morse, an eyewitness, and conducted negotiations regarding possible settlement and a trial setting.

March 11, 1963, was ultimately fixed as a trial date. It appears from the testimony of Mr. Richard E. Martin, one of garnishee’s attorneys, and from the testimony of Harry Rich that Earl H. Rich had for many years lived most of the time in the domiciliary wards of the Veterans Administration Facility at Wadsworth, Kansas — 70 miles distant from St. Joseph, the transportation fare by bus thereto being $1.70. For a further description of defendant Earl H. Rich, his life habits and activities, we quote from the testimony of his father, Harry Rich:

“Q. Where does Earl reside when he is in St. Joseph? Where does he live? A. Stays with me part of the time.
“Q. At other times where does he stay? A. Buchanan County jail and Wadsworth.
“Q. At the Domiciliary in Wads-worth? A. Yeah.
“Q. He is a veteran of World War II, is he? A. Yeah.
“Q. What happened to him in the war that made it necessary?
“A. Well, seem to be shell shock.
“Q. Shell shock? A. Got to drinking alcohol; wasn’t satisfied unless he was drinking all the time; take anything out of the house.
“Q. Mr. Rich, do you recall prior to the accident did you tell Earl Rich that he could drive your car?
“A. No, I didn’t. He just stole the car. I didn’t know he was going to take it”.

It was further the testimony of Mr. Martin (plaintiff presented no evidence to the contrary) that on February 2, 1963, Earl was informed that the trial would be held early in March and he was requested to “hold himself in readiness” to come to St. Joseph on short notice. He was informed that he would be notified by telephone as to the exact date and was advised that his presence at the trial was absolutely essential. On March 6, 1963, Mr. and Mrs. Harry Rich were notified that March 11th had been fixed as the trial date. They notified Earl and sent him four dollars as bus fare and incidental costs of transportation. The company’s attorneys telephoned Earl at least four times prior to March 11th. He failed and neglected to respond to any of these telephone calls. At 1:32 p. m. on March 10, he personally acknowledged that he had been notified of the exact trial date, had been requested to attend and had received money from his parents for the costs of the bus trip. He failed, neglected or refused to respond or attend the trial. He was not present in court on the morning of March 11, the zero hour of the trial. Counsel for the company thereupon advised the Court of these facts and requested leave to withdraw. The request was granted and thereupon counsel did withdraw. The plaintiff then proved up her case against Earl H. Rich as a default matter and was awarded a judgment of $10,200.' It is upon this judgment that the present garnishment action is predicated.

We believe two questions are presented: First, were garnishee’s attorneys justified in withdrawing from the defense of the suit and, second, did the behavior of Earl H. Rich as to cooperation with insurer, including his failure to attend the trial, under all these circumstances amount to a failure to comply with a condition precedent of the policy and result in a release of the insurer from liability under the policy as to the Lenhart-Earl H. Rich casualty and lawsuit ?

As to the first question the plaintiff offered no testimony or evidence controverting Earl H. Rich’s alleged behavior and refusal to attend the trial as detailed by garnishee’s witnesses Martin and Harry Rich. It is our opinion that their testimony, if believed, would afford a sound basis for and justified counsel’s withdrawal. The trial court also thought so and its findings especially on matters involving credibility should be deferred to by this court. Now as to the second and final question namely, is the garnishee company absolved from liability under the policy and not answerable to plaintiff for the amount of the judgment or any part of it (the coverage here was only $5,000). We shall examine some of the precedents touching on this question.

The United States Court of Appeals, Seventh Circuit (Potomac Ins. Co. v. Stanley et al., 281 F.2d 775, 781) interpreted a like liability insurance proviso in an Indiana policy and held that the standard cooperation clause is a material condition of a liability policy and a breach of that condition relieves insurer of liability. The court said:

“We thirds the majority view, that the failure of an insured person to attend a trial and aid in the defense when a case against him is called for trial, is per se, prejudicial, is consistent with the established principle of Indiana law that one who would seek to enforce a contract for his benefit must show that he has performed all conditions on his part required to be performed as a condition precedent to his right”.

In Bauman v. Western & Southern Indemnity Co., 230 Mo.App. 835, 77 S.W.2d 496, 498, plaintiff had recovered a judgment against an individual insured who was covered on her liability policy issued by defendant company. Plaintiff sued the company to collect the judgment and prevailed in the trial court. The insured, although not a witness to the accident, failed to appear in court at the trial although requested to do so. The court of appeals reversed outright the judgment against the insurer and said:

“The unexcused failure of an assured to co-operate with an insurance company in accordance with the conditions of the policy is sufficient to release the insurance company from liability on the policy, provided there be no bad faith on the part of the insurance company, and provided the condition requiring the assured’s co-operation with the insurer was breached by a material lack of co-operation. Bassi v. Bassi, 165 Minn. 100, 205 N.W. 947; Finkle v. Western Automobile Ins. Co., 224 Mo.App. 285, 26 S.W. (2d) 843, 846”.

The case of Fischer v. Western & Southern Indemnity Co., Mo.App., 106 S.W. 2d 490, 491, is very similar. Insured admitted that he received but did not answer insurer’s letter requesting him to call and discuss the lawsuit, neglected to advise insurer whether he or the driver would be available for trial and admitted that he was offered free transportation to the place of trial. The court held that under these circumstances the insured was guilty of inexcusable lack of co-operation which relieved the insurer from liability under the policy as a matter of law. The. appellate court gave a rather clear declaration of the law as applied to such situations in these words:

“It is of course the law that absent fraud or bad faith on the part of the insurance company, or collusion between it and the assured, the latter’s unexcused failure to co-operate with the company in a material respect in accordance with the conditions of the policy so requiring will serve to release the company from liability under the policy. Finkle v. Western Automobile Insurance Co., 224 Mo.App. 285, 26 S.W. (2d) 843; Bauman v. Western & Southern Indemnity Co., [230] (Mo.App.) [835] 77 S.W. (2d) 496, 502. And not only must the assured cooperate, where the policy so requires, in the preparation of the defense to the end that the case may be made ready for trial, but it is held that his failure, without just cause or excuse, to appear in court at the time of the trial materially prejudices the insurance company in its efforts to defend the action brought against him, and constitutes a clear breach of the cooperation clause of the policy so as to warrant the company in disclaiming liability thereunder and in withdrawing from the defense of the case”.

The same principle or applicable rule as announced by the courts of appeals in the Bauman and Fischer cases, supra, had the approval of the Supreme Court in Quisenberry v. Kartsonis, Mo., 297 S.W.2d 450, 453, where the court again interpreted the meaning of this cooperation clause in an insurance policy. We quote briefly from that opinion:

“The condition in a policy of liability insurance requiring insured to co-operate is valid and enforceable. The insured must perform the conditions of the contract upon which insurer’s liability depends and, absent fraud, bad faith, or collusion by insurer, the insured’s unexcused failure to cooperate in a substantially material respect releases insurer from liability under the policy as to the particular casualty in question”.

Plaintiff in our case relies strongly upon Cowell v. Employers’ Indemnity Co., 326 Mo. 1103, 34 S.W.2d 705. The Supreme Court in the Quisenberry case distinguished Cowell, pointing out that the insurer company garnishee had there pleaded in effect that the insured had breached the cooperative clause in that he falsely informed insurer that his automobile was not being driven by him or by anyone on his behalf at accident time, but had been stolen and was being operated by some unknown person; and that just prior to trial insured informed insurer that he was the operator of the automobile. Garnishee adduced no evidence. On appeal from a judgment entered on a directed verdict for plaintiff, garnishee made three contentions — none of which involved the cooperation clause — in fact, the court specifically noted that the defense of breach of contract had been abandoned on appeal. It appears that the Cowell case is of very little help to plaintiff on this appeal.

What constitutes “cooperation” within the meaning of the policy provisions is usually a question of fact. We believe the evidence here shows clearly a lack of cooperation. The defendant Earl H. Rich failed, neglected or refused to attend the trial although duly notified by his parents and by the insurer’s representative and even though provided with funds for his transportation costs. No explanation is offered or suggested for his lack of cooperation. In fact it affirmatively appears that he was not ill, was only a domiciliary resident at the Veterans Administration Facility and transportation from Wadsworth to St. Joseph by bus was available every few hours.

We believe that defendant Earl H. Rich failed to cooperate with the insurer within the meaning of the condition clause of the policy and that the company was justified in withdrawing from the defense. Since the indemnitee has not performed this condition precedent to liability, the garnishee was not only justified in refusing to defend, but was absolved from liability as to this particular casualty.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


author: CROSS, Judge.

text:
    S & H CONCRETE CONSTRUCTION COMPANY, Inc., Plaintiff-Respondent, v. Jack GENOVA and Ewing Investments, Inc., Defendants-Appellants.
    No. 24078.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.

      Irving Achtenberg, Kansas City, for appellants.
    John G. Crichton and Ben W. Morse, North Kansas City, for respondent.
   CROSS, Judge.

Plaintiff is a corporation engaged in the performance of various construction services. Defendant Ewing Investments, Inc. is a business corporation and the owner of the Carpenter Building, a six story brick structure, at 318 East 7th Street, in Kansas City, Missouri. Defendant Jack Genova is an officer and stockholder of defendant corporation.

Plaintiff prosecutes this action to recover for construction services rendered under an oral agreement. Trial to the court resulted in a judgment for plaintiff against both defendants in the sum of $1,998.01, with interest, and against defendant corporation on its counterclaims for damages. Defendants have appealed.

On October 27,1961, plaintiff corporation, represented by its officer and agent, Bennie Sole, entered into an oral agreement with defendant corporation, negotiated on its behalf by defendant Genova, providing that the former would make certain repairs and improvements upon the latter’s Carpenter Building. Under the agreement plaintiff was obligated to install new window sills, calk around the windows, clean the masonry, patch deteriorated concrete, point the mortar, and then apply waterproofing to the entire surface of the building. For these services it was agreed that plaintiff was to be paid the cost of its labor and material expended and $25.00 for each day of work. Plaintiff claims that the agreement also provided that it was to receive an additional sum, as payment for “overhead expenses”, equal to 8% of the total cost of material and labor. This claim is disputed by defendants’ pleadings and evidence. Also in dispute is a contention by defendants that the agreement obligated plaintiff to furnish continuous personal supervision of the job by its president, Bennie Sole. It is not disputed that the oral contract was terminable at any time at the will of either party.

Plaintiff began work under the agreement and continued working for 19 working days through a period of five weeks. Sole did not give full time personal supervision. Instead a foreman was hired and placed in charge of the work. Defendant Genova was present “on the job” every day during this time observing the work on behalf of defendant corporation. Soon after work started Genova began to complain that the men were not doing the amount of work they should and were not putting in full time. He informed Sole that they got on the job late and would regularly leave the job and go home at 2:00 or 2:30 o’clock and that they were drinking on the job. Genova also complained about the quality of the work. Pursuant to Genova’s complaints, Sole replaced almost the entire working crew at least four times. Genova continued to express dissatisfaction with the amount and quality of work done. Finally, on December 15, 1961, lie terminated the agreement and directed plaintiff to remove its men and equipment from the premises.

On behalf of plaintiff, Sole produced time cards and pay checks which were received as evidence of wages paid for labor on the job totalling $1,576.08. Sole testified to expenditures for materials used in the total amount of $314.92 and “miscellaneous” job expense items amounting to $281.93. Giving credit for “reusable tools” in the sum of $22.00, Sole claimed on behalf of plaintiff the sum of $2,150.00 as the “net total paid out”, $172.08 as “overhead expense” at 8% and 10 days “profit” at $25.00 per day amounting to $475.00 — a grand total of $2,798.01. Giving defendant credit for $800.00 it had previously paid, Sole" testified plaintiff’s net entitlement was $1,998.01.

Defendant Genova testified to the effect that the men on the job did not put in working the time for which they were paid and that their work was not of workmanlike quality. It was Genova’s testimony that he was “there” every day from 8:00 to 4:30. He stated that the workmen didn’t show up before 8:15 or 8:30 in the morning and then “every time I looked up at 2:30 or 3:00 o’clock well, they was on their way home * * * I never seen any of them work after 3:00 o’clock”. He reported this to Sole.

In support of corporate defendant’s counterclaim for damages there is evidence that plaintiff’s workmen had dumped quantities of mortar on the roof of the building and allowed it to harden, resulting in the necessity of its removal and repair of the roof; that they had damaged the flashing with their shoes and caused leaks in the roof; that the awnings of the building were permitted to blow off the building and damaged so as to be useless; that there was damage to cars on the ground and to nearby buildings caused by cement dropped by plaintiffs’ laborers; that the wall surfaces to which plaintiff applied waterproofing were discolored, showed spots and had flaked off in places; and, that it was necessary to redo some of the work — all to corporate defendant’s damage in the approximate sum of $1,000.00.

The first appeal assignment charges the court with error in rendering judgment against defendant Genova because there was no evidence that he was a party to the contract. We are in agreement with the contention. There is no evidence whatsoever in the record to show, or from which legitimate inference could arise, that Genova jointly contracted with defendant corporation or that he guaranteed its obligation. Nor is our attention directed by plaintiff to any such evidence. Plaintiff argues for the first time in its brief, filed after oral argument, that defendant Genova contracted as an agent with an undisclosed principal or that he intended to impose personal liability on himself as a guarantor. There is no basis for this claim. All the evidence, including the admissions of witness Sole who negotiated the contract on behalf of plaintiff, indicates that Genova was acting only on behalf of defendant corporation. Sole testified that he had previously done work for Ewing Investments, Inc., when Genova was acting as its agent and had received the corporation’s check in payment; also, that the partial payment of $800.00 in this case was paid by a check isr sued by Ewing Investments, Inc. Knowing these facts, Sole will not be heard to say that defendant corporation was an undisclosed principal. This theory was not pleaded by plaintiff or developed in the trial.

Consequently we rule that the judgment against defendant Genova is without evidentiary support and that the court erred in rendering it. See Hunt v. Sanders, 313 Mo. 169, 281 S.W. 422. Plaintiff suggests in its brief that if this court should decide there is no personal liability against Genova, we have authority to correct the judgment and enter it as against the defendant corporation only. We would follow that course of action if the trial had been otherwise free from error. As will be developed herein, the trial court has committed additional error so materially prejudicing defendants’ rights as to require retrial of the cause.

The trial court also erred in permitting plaintiff to recover the cost of tools which it purchased and charged to the contract under the heading of “materials furnished and paid”. It was admitted by witness Sole that there was no discussion relative to a charge for tools during contract negotiations and that “the only thing I’d say discussion was that he would pay for materials”. It is the established rule that where contracting parties are operating under a “cost plus contract”, unless there is an agreement obligating the recipient of the work to pay for tools and equipment, such charges are not proper since it is the duty of the contractor to “furnish all the tools and necessary appliances for the work contracted to be done.” Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824. The error is of substance and prejudicially affects the merits of the action.

The trial court further erred by refusing to allow defendant Genova to read from a record of the work done by plaintiff. This memorandum or “job diary” showing the hours that each of the men worked on the job was made by Genova himself, contemporaneously with the work that was done, and in the course of his constant personal observation of the job from day to day during the entire time any work was performed. The memorandum was in Genova’s own handwriting, consisted of four pages, and recorded in detail the working time of each man for each of the 19 working days. Gen-ova testified, “I was on the job from 7:00 till quittin’ time, 4:30 every day. Each day I made my daily report on, on each sheet”. In the course of Genova’s direct examination defendants’ counsel handed him the described memorandum and interrogated him as follows: “I will ask you if you can testify, refreshing your memory from such memorandum, day by day, what hours were worked on this job, if you will — ”. Referring to the “job diary” he had kept, Genova proceeded to testify as follows:

“A. On November the 6th no work was performed, two common laborers on the scaffold and carried sand. Mr. Sole and his partners showed up at, after lunch with the scaffold and they left. That was the day’s work. On November the 7th two finishers, one common laborer start working at 10:15, stop working at 3:45. No work was performed or scratching the wall or fill patches. They did not order — ”

At this juncture the witness was interrupted by the court, as here shown:

“BY THE COURT: Now, wait a minute. We like to be liberal but we can’t sit here and let this man read a document that he has prepared and has been identified that he has used for refreshing his memory. Now, that’s contrary to all principles of evidentiary procedure. Now, he is here, present in person. He can testify in answer to questions but we’re not going to sit here and let him read an epistle pages long which is contrary to concepts of law. Now, if you need a little time to get him straightened out—
“BY MR. ACHTENBERG: Well, if the Court please, these were records made at the time.
“BY THE COURT: Now, if you please, sir, I don’t want any argument. Now, we know what the fundamental laws are and I’m not going to sit here and listen — you wouldn’t even let a doctor read his notes. He can refer to them to testify. But no witness, if you do that just as well dispense with witnesses and come up with some self-serving statements”.

From the foregoing excerpt of the record it is seen that the trial court, of its own volition and without objection by plaintiff, denied Genova any effective use of the record he had kept. In the very nature of things the witness could not be expected to have independent recollection of the myriad details contained in a complete record of the work of eleven men, covering nineteen days extending through a period of five weeks. Therefore, notwithstanding the trial court’s statement that Genova could refer to the memorandum, the nature of the information defendants desired to translate from the writing as probative evidence was of such a detailed character that the only possible way he could “refer” to it and testify would be for him to read from it.

It is a generally recognized rule of evidence that a witness may testify to a transaction or event on the basis of a written record of his past recollection, although the writing does not refresh his memory and he has no present recollection of the matters there recorded. 98 C.J.S. Witnesses § 358c, p. 88. The rationale of this rule is stated by the Supreme Court in State v. Patton, 255 Mo. 245, 164 S.W. 223, as follows: “* * * (T)he witness speaks from a record made by him, or from one which, when it was made, he knew to be a true and correct recital of the facts, but of which, when he testified, he had no independent present recollection, and regarding which he remembers only that, when the record shown him was made, it was correct. In effect, in lieu of his own testimony, he introduces a witness, and merely vouches for that witness’ veracity. In such case the paper, writing, or instrument so identified- — that is, the witness vouched for — is itself competent as evidence, and may be offered. State v. Brady, 100 Iowa 191, 69 N.W. 290, 36 L.R.A. 693, 62 Am.St.Rep. 560; Moots v. State, 21 Ohio St. 653”.

In Mueller v. Rock, Mo.App., 249 S.W. 435, an action to recover for work performed, the trial court refused to permit the plaintiff to refresh his memory from his time records as to the number of hours worked. Such action by the trial court was held to be reversibly erroneous since “it touched the very life of plaintiff’s rights in the case”. Likewise in this case the trial court’s error, the effect of which is to exclude from consideration the probative facts contained in Genova’s work record, is so destructive of defendants’ legal rights that it must be considered reversible 'in its nature.

In addition to the points raising the issues hereinabove discussed and ruled, defendants’ brief contains six further assignments of error. Since the questions therein presented may not arise again upon a retrial of the case,rwe deem it unnecessary to determine them.

Because of the above noted prejudicial errors committed in the trial of this action, the judgment is reversed and the cause is remanded for a new trial consistent with this opinion.

All concur.

      . See Annotation — Refreshment of recollection by use of memoranda or other writing. 82 A.L.R.2d, p. 473, 604.

      . Also see State v. Bradley, 361 Mo. 267, 234 S.W.2d 556; Smith v. Bergmann, Mo. App., 377 S.W.2d 519; Ward v. D. A. Morr Transfer & Storage Co., 119 Mo.App. 83, 95 S.W. 964; King v. Furry et al., Mo.App., 317 S.W.2d 690; Ahern v. Boyce, 26 Mo.App. 558.


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    Gladys WOHLGEMUTH, Plaintiff-Appellant, v. Paul S. BROWNING, Executor of the Estate of Samuel D. Browning, Deceased, Paul S. Browning, Individually, and Roy E. Browning, Defendants-Respondents.
    No. 24011.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.

      James J. Wheeler, Keytesville, for appellant.
    Don Chapman, Chapman & Chapman, Chillicothe, for respondents.
   BROADDUS, Presiding Judge.

This is an appeal from a judgment finding that plaintiff did not have an interest in the probate of the will of Samuel D. Browning and dismissing her petition to contest the same.

Plaintiff’s amended petition alleged that, while plaintiff was of tender years, Samuel D. Browning and Laura Browning, his wife, promised and agreed with plaintiff’s natural parents that if they would relinquish the control, custody and services of the plaintiff to them Samuel D. Browning and Laura Browning would provide and care for and adopt plaintiff as their child and bring her up and treat her as their child and heir; that plaintiff did malee her home with the Brownings as a member of their household, and, during all the time she was in the home, plaintiff worked and assisted in all type of household work and with the housekeeping, cooking, garden work and yard work. The petition alleges the Brownings received the benefits of plaintiff’s services and of her love and affection, and the Brownings looked upon plaintiff as their daughter; that plaintiff performed her part of the oral contract of adoption, and gave to the Brownings obedience, love and affection, and treated them as a loving and dutiful daughter; that defendants are estopped to deny the plaintiff is an adopted child of Samuel D. and Laura Browning.

Plaintiff’s petition alleges that Laura Browning predeceased her husband Samuel D. Browning; that in July of 1960, a paper writing purporting to be the last will and testament of Samuel D. Browning was presented to the Probate Court of Chariton County; that said paper writing was not the last will and testament of Samuel D. Browning, but was the result of undue influence and executed at a time Samuel D. Browning was not mentally capable of making a will.

The only issue tried was whether or not the plaintiff had such an interest in the probate of the will of Samuel D. Browning as to support an action to contest the will and the trial court found plaintiff “is not the adopted daughter of Samuel D. Browning, deceased, and therefore cannot maintain her action to contest the will of Samuel D. Browning.” Plaintiff’s petition was then dismissed.

Plaintiff, Gladys Wohlgemuth, was born of the marriage of Jake and Mary Higgins in the year 1912. Her parents were divorced in the same year and her mother was given custody. When plaintiff was about two years old, her mother went to the home of Samuel D. Browning and his wife, Laura Browning, as a hired girl, where she stayed a short time. The Browning family consisted of two sons, Roy Browning about 12 years old in 1914, and Paul Browning about two and a half years older. When plaintiff’s mother left the Brownings, she left plaintiff, then a child of two, with the Brownings as a member of their household, until her maturity and marriage.

Jake Higgins, plaintiff’s father, remained in the vicinity of Triplett (a small town near the Browning residence) and worked as a day laborer and wood chopper until 1915, when he went to Iowa. He testified that the Brownings would not let him visit with his daughter when he saw the Brownings in town; that they would pick her up and take her away from him; that on one occasion, he tried to get plaintiff from the Brownings and went to their residence for this purpose; that he was told by Mrs. Browning that he could not come in; that his wife, mother of plaintiff, had given Mrs. Browning the girl and that she, Mrs. Browning, was going to keep her.

Higgins further testified that when plaintiff was about three years old Samuel D. Browning came to his (Higgins) residence in Triplett and asked him to go to Brunswick so that the adoption of plaintiff could be completed; that he did accompany Mr. Browning to Brunswick and to the office of a lawyer, whose name he did not remember; that he had no objection to the adoption and was told by Mr. Browning that arrangements had been made with the mother for the adoption; that the mother was to meet them at the lawyer’s office to complete the adoption, but that she did not appear.

Plaintiff made her home with the Brown-ings from the time she was two years of age until a year after she finished high school. She referred to the Brownings as “Mother” and “Father”. She was known by the name of Browning. She did the usual housework in the Browning home, washing dishes, caring for chickens, carrying wood, etc.

Plaintiff was enrolled in grade school under the name of Browning and Mrs. Browning, according to one witness, referred to her as “my girl.” Joe Allen, who worked for the Brownings as a hired hand off and on, living in their home, from the time plaintiff was a small child, testified he did not know plaintiff was not a natural child until before the trial.

Plaintiff was enrolled in high school as Gladys Browning. She graduated, as shown by her diploma, as Gladys Mae Browning. The annual school enumeration for the country school district in which the Brown-ings lived, list Gladys Browning, as a child of Sam Browning for the years 1925, 1926, 1927, 1928, 1929 and 1930. Plaintiff’s Exhibits six and seven show that in the census of 1920, plaintiff was enumerated as a daughter and member of the family of Sam D. Browning. She was photographed as a part of the family and, upon the death of Sam Browning, the local newspaper listed' plaintiff as a surviving daughter.

Sometime before his death Sam Browning-gave to each of his two sons and the plaintiff the sum of $1,000. .

Roy Browning testified that he never heard his father say he was going to meet Jake Higgins and was going over to town to get a paper. Paul Browning testified that: Jake Higgins never came around his-father’s home; that his mother never reported to him or to her husband the presence-of Jake Higgins oil the place; that he never saw Jake Higgins' at any time during the-time Gladys was living in his father’s home. Paul Browning, on being asked if his father ever reported to him about going to Brunswick to get papers on Gladys — his answer was “That is untrue.”

Mrs. Viola Feitz, who was a neighbor of’ the elder Brownings, had known them since-1920. Their farms adjoined. She visited in their home and Mrs. Browning told Gladys that they were not her father and mother.. Mrs. Feitz never heard Mr. or Mrs. Browning state that they had adopted Gladys; that, she never heard they agreed to adopt her.

Mrs. Geraldine Dickinson testified that Gladys Wohlgemuth went to school to her; that she never heard Mr. or Mrs. Browning say that they had adopted her; that neither Mr. nor Mrs. Browning registered her as Gladys Browning. Mrs. Dickinson testified that Mrs. Browning’s reputation for integrity was good.

Lee Browning, a nephew of Samuel Browning never heard Mrs. or Mr. Browning refer to Gladys as their daughter.

Joe Allen, hired man of the Brownings, stated that he never heard the Brownings refer to Gladys as their daughter.

The will of Samuel D. Browning, deceased, designated Paul and Roy Browning as his sons. He mentioned Gladys Wohl-gemuth, but did not designate her as his daughter.

Ober Putnam, a brother of Laura Browning, testified that he lived in Indianola, Iowa; that in 1914 their parents (Mr. Putnam’s and Mrs. Laura Browning’s) lived in Ackworth, Iowa; that Mr. and Mrs. Browning came to visit them; that they brought Gladys with them; that they were curious to know where they got the little girl; that the Brownings said she had been left at their place by her mother; that they were to take care of her and that they had promised to do so for awhile; that they wondered if they would adopt her and the Brownings said no, they had no intention of adopting her; that the boys wouldn’t approve of it; that what little money they had left when they died, they wanted to go to the boys.

Ober Putnam further testified that while they were visiting they went up to see a party by the name of Riley Ogan, an old friend of Sam Browning; that they took Gladys with them; that “Riley was curious, same as we were about where they got the girl, and Sam told him the same that he had told us.” Ogan said, “Are you aimin’ to adopt her?” Sam says, “No, we’ll never do that, it wouldn’t be fair to the boys.”

Ober Putnam further testified that Gladys had been left temporarily with the Brown-ings by her mother and they promised to take care of her until she came back for her. In response to the question: “Did they call her Gladys Browning?” he said: “They just called her Gladys.” He never understood that they gave her the name of Browning, and he never heard her referred to, in the presence of the Brownings, as Gladys Browning.

Mrs. Opal Browning testified that she and Paul Browning were married in 1930; that she asked Mrs. Browning: “Well, if she (Gladys) isn’t adopted, why is she going by the name of Browning ?” I first asked Mrs. Browning if she was adopted and she said, “No, she isn’t adopted.” Mrs. Opal Browning then asked the elder Mrs. Browning, “Why does she go by the name of Browning?” She answered by saying, “Well, the neighbors got to calling her Browning because she came here when she was just a child and it just kept going like that, they just let it go.” Mrs. Opal Browning further testified that she never heard her father-in-law or her mother-in-law say that they had agreed to adopt Gladys. They said they intended to treat her nice; that when Gladys considered getting married, she heard a conversation between Gladys and Mrs. Laura Browning about Gladys’s use of the Browning name. At that time Mr. and Mrs. Browning were in the dining room and Opal and Paul went into the house not knowing there was any discussion on it; that they walked up to the door and Gladys and Mrs. Browning were putting up window blinds and Gladys said: “Ma, I want to use the name of Browning when I get married because Otto insists on it.” Mrs. Browning said, “Gladys, we have gone over this so many times. You cannot use the Browning name, it isn’t legal; you know you have never been adopted.” She testified that Gladys was treated very well.

In January, 1949, Mrs. Browning wrote a memorandum as to the disposition of their property. The memo is as follows: “January, 1949: Mrs. Laura Browning, Mother of Paul and Roy Browning, after our death, Sam and Laura, divide equal between the Paul and Roy Browning; give Gladys a share of my clothes; let dad have the bed clothes; give Gladys, also, some dishes.”

Ben Feitz, a neighbor of the Brownings lived in that neighborhood since 1901. The Brownings moved there a year or so later. He never heard the Brownings say that they agreed to adopt Gladys. Mr. Feitz said that the general reputation of Sam Browning and wife for integrity, honesty and truthfulness was good. He testified that Gladys went by the name of Gladys Browning; that he never heard Sam Browning introduce her as his daughter.

Lavon Browning, son of Roy Browning, testified that he heard his grandmother and grandfather say that Gladys’s mother had left her with the Brownings with the idea of coming back for her; that he never heard his grandmother or grandfather say that they had agreed to adopt her.

Miss Katy Putnam, a sister of Mrs. Laura Browning, testified that she was down in Missouri three months before her sister died; that Mrs. Browning had written her about this girl being left there; that she had lost the letter; that Mrs. Browning wrote her that they took the little girl to raise, but didn’t adopt her; that Mr. Browning said they had never adopted her; that they never told her they had agreed to adopt her; that they were at the Brownings in 1923 when Gladys was a little girl; that Gladys was treated as a member of the family; that she told Mrs. Browning that she should tell Gladys that she was not their daughter; that soon after that she did tell her — sometime in the summer — “Gladys you are not our daughter”; that Mrs. Browning told Gladys that she should get married under her name of Higgins; that she kept what is known as the Putnam Bible; that it shows the registry of all the Brownings and the Putnams; that it does not show anything about Gladys.

The law governing this case is well settled. As said in the case of Benjamin v. Cronan, 338 Mo. 1177, 93 S.W.2d 975, 979:

“However, the rule is definite and strict as to the requirements respecting the character and quantum of proof necessary to establish an oral contract to adopt or to^ establish adoption on the theory of estoppel. This rule, as expressed in numerous cases,, is that such evidence must be clear, cogent,, and convincing, and such as to leave no reasonable doubt. Kay v. Neihaus, 298 Mo. 201, loc. cit. 205, 249 S.W. 625; Taylor v. Coberly, 327 Mo. 940, 38 S.W.(2d) 1055, loc. cit. 1060; Gipson v. Owen, 286 Mo. 33, loc. cit. 49, 226 S.W. 856; Ahern v. Matthews, [337] (Mo.Sup.) [362] 85 S.W.(2d) 377, loc. cit. 383. The cases as to this rule are likewise numerous and none to the contrary. In Wales v. Holden, supra, 209 Mo. 552, loc. cit. 558, 108 S.W. 89, 90, it is said: ‘The circumstances of this case (for specific performance of alleged oral contract to adopt) forcibly illustrate the wisdom of the rule of evidence so firmly established and so often declared by this court, namely, that the proof to sustain a claim of this kind, in the face of the statute of frauds, must be overwhelmingly in its probative force, leaving no room for a reasonable doubt.’ And, as stated in Kinney v. Murray, 170 Mo. 674, loc. cit. 700, 71 S.W. 197, 202, ‘there must be no equivocation or uncertainty in the case.’ In the present case, as in all such cases, the burden of proof was on plaintiff to establish his case by that character and quantum of proof as required by law. 1 C.J. 1379; Teats v. Flanders, 118 Mo. 660, 24 S.W. 126; McKee v. Higbee, 180 Mo. 263, loc. cit. 304, 79 S.W. 407.” (Italics ours)

Not a witness testified that he ever heard either Sam or Laura Browning state that they had adopted plaintiff nor heard them say that they had agreed to adopt her. It is true that plaintiff was left at the home of the Brownings. They fed, clothed and educated her. The court said in the Benjamin case, supra, that the fact that a child is taken into the home at a tender age and recognized and referred to as an adopted child does not necessarily establish adoption of the child. The court in Hogane v. Ottersbach, 269 S.W.2d 9, Mo.Sup., held that the mere fact alone that one takes a child into "his home to raise as his own and does so, is not sufficient to constitute adoption by estoppel.

Plaintiff’s brief states that she attended ■school as a Browning and was held out and married as a Browning and enumerated to 'the school authorities as a Browning, and ■that she was listed by the Brownings as their daughter in the census of 1920. She ■did attend school as a Browning. But there is no evidence that Sam or Laura Browning registered her under that name. Mrs. Dickinson, the school teacher, said neither Mr. nor Mrs. Browning registered her. She was registered as a Browning because she ■stayed with the Brownings.

There is no evidence that plaintiff was married under the name of Browning. Mrs. Viola Feitz says she thinks that plaintiff got married as Gladys Higgins Browning. “I think that is the way it came out in the Brunswick paper.” There was substantial evidence to the effect that Laura Browning told plaintiff that she had not been adopted and that she should not use the name of Browning in getting married.

Jake Higgins stated that he went with Sam Browning to a lawyer’s office for the ■purpose of completing the adoption. Sam and Laura Browning are dead — their lips are sealed. However, no member of the Browning family ever heard of it, and Paul Browning said: “It was untrue.” The reasonable inference is that if Sam Browning was going to adopt plaintiff and go to a lawyer’s office to have the papers made out, he would have taken Mrs. Higgins because she is the one who left the child and the one who was given custody by the court in the divorce proceeding. Apparently, the trial court gave little weight to the testimony of Jake Higgins.

Plaintiff’s brief states that when Sam Browning died she was listed in the death notice as his daughter. The exhibit show-mg this was excluded by the court for the reason that “it is not shown who inserted it — who was the author of it.”

The Brownings were people of known integrity in the community and had they agreed to adopt plaintiff it is but reasonable to believe that they would have done so. Stillman v. Austin, 148 S.W.2d 573, 575, Mo. Sup. And a significant fact to be considered is that in the will of Samuel D. Browning the plaintiff was not referred to as a daughter or adopted daughter. See Westlake v. Westlake, 201 S.W.2d 964, 969, Mo.Sup. The will described the defendants, Paul and Roy Browning as “my sons.”

We have reached the conclusion that, under the evidence, plaintiff did not make out a case that measures up to that character and quantum of proof that the law requires in cases of this nature.

The judgment is affirmed.

All concur.