text:
    Mary ROOT, Plaintiff-Appellant, v. Bessie HENRY, Defendant-Respondent.
    No. 31835.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.

      Morris A. Shenker and Frank B. Green, Jr., St. Louis, for plaintiff-appellant.
    Don B. Sommers, Gray & Sommers, St. Louis, for defendant-respondent.
   WOLFE, Presiding Judge.

This is an action against a defendant landlord by Mary Root for damages arising out of an injury she sustained when she slipped and fell while entering a rooming house where she lived. There was a verdict in favor of the plaintiff in the sum of $8,000. The defendant filed a motion for judgment in accordance with her motion for a directed verdict filed at the close of the evidence. The court sustained this motion and entered a judgment for the defendant. The plaintiff prosecutes this appeal.

It is of course here contended that the plaintiff made a case properly submissible to the jury and that the court erred in entering a judgment for the defendant.

The facts are that the plaintiff, who was 60 years of age, was employed in a laundry which was five blocks from the place where she lived. On December 1, while at work, she noticed from the window, at about two or two-thirty, that it was raining and freezing. This continued and it was still raining and freezing as she quit work at four-thirty. When she left work she crossed the street and bought a loaf of bread and then walked the five blocks to her home. She did not arrive there until about five fifteen. It took her forty-five minutes to buy the bread and walk from the laundry because the sidewalks were very slippery and slick. It was still misting rain and freezing as it fell.

The place where the plaintiff lived was owned by the defendant. It was a rooming house and the plaintiff occupied two rooms on the second floor. The front of the main part of the house was about twenty-five feet from the public sidewalk. There was a one story building in front of the main house and attached to it. This contained a confectionery which the defendant operated. It extended out to the front sidewalk. Flanking the east wall of the confectionery there were four steps leading up to a walk. This walk, also adjacent to the east wall of the confectionery, led to steps that went up to the front door of the main building.

The plaintiff testified that as she reached the sidewalk in front of the house she could see that salt had been spread upon it and on the steps that went up to the walk leading to the door. She could see this by reason of the street light but it was quite dark at the time and as she reached the walk leading to the steps that went up to the front door and she could not see the walk. She said that she could feel salt on the walk with her feet but that it was still raining and that the rain had frozen over the salt and it was slick.

Carrying a loaf of bread in one hand and her handbag in the other she went up the walk to the steps by the front door. She placed her left foot on the first step and as she did so and put her weight upon it she slipped and fell. She said she did not feel any salt with her foot as she placed it on the step where she slipped. Her fall caused her to break her ankle but the evidence relating to her injury need not be set out as no point is raised in relation to it. She also stated that the defendant told her after the accident that she had not finished the job of salting because she had run out of salt.

The defendant’s testimony was that she had spread salt on the front walk, both sets of steps, and the walk between them at about two-thirty in the afternoon when the freezing started. She denied that she had told the plaintiff that she had not finished the job of salting. She also said that her other tenants had entered the main house through the confectionery, which had a rear door connecting with the hall of the main house.

As stated, there was a verdict and judgment for the plaintiff. The defendant filed a motion to set aside the judgment and to enter a judgment in favor of the defendant, or in the alternative, to grant a new trial. The court sustained the motion and set aside the judgment and entered a judgment for the defendant in accordance with defendant’s previous motion for a directed verdict and in the alternative granted a new trial should its order entering a judgment for the defendant be held erroneous upon appeal.

In support of her contention that the court erred in entering a judgment for the defendant the plaintiff makes the following assertion:

“On the issue of negligence, plaintiff adduced substantial evidence that the defendant knew, or in the exercise of ordinary care could have foreseen that the incomplete job of spreading salt on the exterior steps created, after dark, a deceptive appearance, to one in the exercise of ordinary care for his own safety, that all of the steps were coated with salt; that by reason thereof plaintiff was caused to fall; that such aforementioned conduct on the part of defendant constitutes actionable negligence falling within the well settled rule of law that one who assumes to aet, even though gratuitously, may thereby become subject to the duty of acting carefully if he acts at all; *

The law on the duty of a landlord as it relates to the removal of snow and ice was fully discussed in Woodley v. Bush, Mo.App., 272 S.W.2d 833, in which we quoted with approval from 52 C.J.S., Landlord and Tenant, § 417 d, p. 46, wherein it is stated:

“In the absence of statute or agreement, there is generally no duty on the part of the landlord to his tenant to remove from the roof, steps, or walk, snow or ice which naturally accumulates thereon, and he is not liable for injuries caused thereby. This rule applies also to such natural accumulations on sidewalks adjacent to houses rented to several tenants or to a building of which the landlord, as an occupant, is in control of a part. * * * ”

The appellant, recognizing this lack of liability for the natural effect of freezing rain presented her case on the theory that the landlord, having attempted to abate the slick condition by spreading salt on the steps by the sidewalk and failing to salt the steps by the door, created a deceptive situation which would lead one to believe that all of the steps had been salted. She relies upon two cases, Bartlett v. Taylor, Mo.App., 168 S.W.2d 168; 351 Mo. 1060, 174 S.W.2d 844, and Kennedy v. Bressmer, Mo.App., 154 S.W.2d 401. Both of these cases deal with a landlord, who, without legal obligation to do so, undertook to repair a defective part of the premises leased to another and by the negligence of the repair the tenant was injured. The general rule covering such cases is that in the absence of a contract to do so the landlord is under no obligation to his tenant to make repairs or improvements on the demised premises, yet, if he voluntarily does so for his own advantage or for the common advantage of himself and the tenant, he must use reasonable care in doing so, and is liable for any injury caused by his negligence.

We do not consider the situation in those cases analogous to the one here under consideration for they relate to an attempt to correct a defect in the structure leased and the action of the landlord in the case before us relates to an attempt to lessen the hazards of a general natural condition common to the entire area in which the house was located. The attempt to correct the natural hazard of ice or snow can only in a few instances be fully effective. To extend the doctrine of liability for negligent repair by a landlord, to the cleaning or otherwise making icy sidewalks passable, would in effect make him the guarantor of the safety of the person using the walk when it is obvious that the best of efforts may fail to remove all slickness or patches of ice upon which one may slip and fall.

Even if we were to accept the plaintiff’s theory of negligence she would have failed to make a case. Viewing her evidence in a light most favorable to her, as we do, [Mo. Digest Trial, <®=>152(2)] and giving her the benefit of all favorable inference which can be logically drawn from it, all that can be found is that she slipped on an icy step. She stated that the rain was freezing over the salt and that the walk was slick where the salt had been spread. We cannot therefore say that it was the lack of salt that caused her to slip as the walk containing the salt was also slick. Where the evidence tends to support equally either of several inconsistent factual inferences, some of which result in a failure of proof of defendant’s actionable negligence, the factual issues essential to the plaintiff’s case may not be said to be established by legitimate proof. Williams v. Cavender, Mo., 378 S.W.2d 537; Ringeisen v. City of St. Louis, Mo.App., 238 S.W.2d 57.

We fully considered the nature of the liability that might arise in removal of ice in a similar situation that we had before us in Krause v. Laverne Park Ass’n., Mo.App., 240 S.W.2d 724. We held that the result of the efforts of one attempting to remove ice brought upon him no liability unless it increased the hazard to which others were exposed. It is, of course, obvious that a failure to salt the step would not increase its slickness and the slickness was the natural and only hazard to which the plaintiff was subjected.

The other points raised relate to an instruction which the court held to be erroneous in its alternative ruling granting a new trial. The view we have taken above makes it unnecessary to consider those points.

The judgment is affirmed.

ANDERSON, J., and WOODSON OLD-HAM, Special Judge, concur.

RUDDY, J., not participating.


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    Frank BOEHM, Plaintiff-Respondent, v. C. J. KINDLE, Lyndon Kindle, Eva Lee Pritchard and Robert Kindle, Defendants-Appellants.
    No. 31831.
    St. Louis Court of Appeals. Missouri.
    Sept. 21, 1965.
    David L. Colson, Smith & Colson, Far-mington, for plaintiff-respondent.
    Melvin L. Hertzman, St. Louis, Robert A. Mcllrath, Flat River, for defendants-appellants.
   WOLFE, Judge.

This is an action on a purported breach of warranty. There was a verdict and judgment for the plaintiff and the defendants prosecute this appeal.

The facts are that plaintiff entered into a contract with the defendants to buy from them all of the corporate stock of Farming-ton Transfer, Inc. This corporation was what is known as a short-line carrier operating from terminals in Farmington, Poplar Bluff, and St. Louis, Missouri. Plaintiff met on July 14, 1960 with Lyndon Kindle, who acted on behalf of all of the stockholders. Plaintiff Boehm and Lyndon Kindle met in the office of the plaintiff’s attorney in St. Louis and a contract of sale was discussed. It was agreed that Boehm would purchase all of the stock of the corporation for $55,000. The contract was drawn up the day following. It was agreed that the sellers would continue to operate the corporation until it was taken over by Boehm. This he did on August 15, 1960. The only provisions of the contract relied upon by the plaintiff are designated as Section (d) and (e) of Paragraph 3, which are as follows:

“3. Sellers warrant and represent:
* * *
“(d) That included among the assets of Farmington Transfer, Inc. on July 15, 1960 are the motor vehicles, trailers and other equipment, all as more particularly described in Exhibit C attached hereto, and incorporated herein by reference the same as though fully set forth herein.
“(e) Sellers have furnished to Buyer a copy of the balance sheet of Farming-ton Transfer, Inc. as of July 15, 1960, attached hereto marked Exhibit D, and incorporated herein by reference the same as though fully set forth herein, which said balance sheet truly reflects the assets and liabilities of Farmington Transfer, Inc., as they appear on its books as of said date.”

The evidence disclosed that when the parties met to discuss the terms of the contract on July 14 the plaintiff’s attorney requested the sellers to furnish a balance sheet of the corporate assets and liabilities. Mr. Lyndon Kindle telephoned to a Mr. Gray who was in Farmington where the corporation had its main office. He had done some tax work for the Farmington Transfer, Inc. and Kindle asked him to prepare a balance sheet and send it up that afternoon to St. Louis. Gray told him that he could not prepare an accurate statement in such a short' time. He had only two hours after the call to prepare it. He told the same thing to the lawyer who was put on the telephone and the lawyer said they wanted “some idea” about what they were buying. Gray then prepared and sent up the statements requested and they were typed and made the Exhibits C and D mentioned in Paragraph 3 (d) and (e) set out above. The Exhibit C attached to the contract was a list of equipment mentioned in 3(d) and Exhibit D attached to the contract was a “Financial Statement July 15, 1960” mentioned as the “balance sheet” in 3(e). The balance sheet showed total assets of $74,678.47 and one of the items listed was “cash on hand and in bank” $10,068.32. The liabilities listed “accounts payable” as $485.00. It was plaintiff’s contention that both of these items were erroneous.

The presentation and reception of the evidence below was marked by such a cavalier disregard for the rules of evidence and in such irrational and compound confusion that it is difficult to clearly state the facts. The plaintiff was called as the first witness and disclaimed any knowledge of the company’s finances stating that the operation of it from the time he acquired the stock on August 15, 1960 had been left to Joseph Dunne. Dunne was made president of the company. Dunne disclaimed any knowledge of the financial status of the corporation as of July 15. He did, however, state that the company had on deposit at least $500.00 in a clearing house arrangement with the Cass Bank of St. Louis and a similar minimum sum of like amount with the Transport Clearing House.

It should be noted that this $1,000.00 of assets was not included in the financial statement attached to the contract on July 15. The third witness called was a Mr. Helm, Certified Public Accountant, and he testified that he audited the corporate bank accounts in the First State Bank of Farm-ington and the Poplar Bluff State Bank. He stated that the balances as of July 15, after taking1 off outstanding checks, totaled $4,994.48 rather than $10,068.22 as shown on the contract statement. He also testified that the total accounts payable were $3,968.15 rather than $485.00 as shown on the contract statement.

For reasons not apparent the plaintiff then called Mr. Gray to the stand who testified that he assisted Mr. Heim in checking the hooks. He had prepared a revised list of assets which the plaintiff introduced as his “Exhibit K.” This showed the total assets to be $80,993.35, or $6,314.88 more than the total assets listed on the statement given at the time of the drawing of the contract. The witness stated that the difference arose by reason of the failure at the time that the original statement was drawn to include office equipment, and other miscellaneous corporate properties. In this statement Gray found the bank balances to total $6,072.49 instead of $4,994.48 as stated by Helm. Neither Helm nor Gray include the $500.00 in the Cass Bank or the $500.00 in the Transport Clearing House.

The defendants’ evidence added little to the foregoing. The stock of the Farming-ton Transfer, Inc., was owned exclusively by the Kindle family; C. J. Kindle, his wife, daughter, and two sons. The corporate bookkeeping consisted of a single entry system and a bookkeeper was employed and supervised by C. J. Kindle. Kindle stated that in 1959 he had made a false entry of withdrawal of $4,000.00 so that the balance appearing in the books would always be $4,000.00 less than the actual bank balance. He said that he did this because some people who worked for him liked to know too much about his business and they would go in at times and look at the books.

The bookkeeper knew of the false entry and when she wanted the true balance she would add $4,000.00 to the book balance. She testified that she figured the bank balance in the Farmington Bank as shown on the books for July 14, 1960 and that it was $3,902.74. She then added the $4,000.00 to get the true balance, which gave her $7,902.74 in the Farmington Bank. To this she added $2,316.15 which was in the Poplar Bluff bank, and cash on hand amounting to $60.57. All of this totaled $10,279.46. She did not add to this figure the $1,000.00 deposits in the two clearing house accounts mentioned, and she could not account for the difference between the amount she testified to ($10,279.46) and the amount stated in the balance sheet of July 14 ($10,068.32).

C. J. Kindle told of taking $2,000.00 from the bank account which he kept in payment to himself for rent owed to him by the corporation. Sellers operated the company for one month after the date of July 15 as they were supposed to do under the contract.

As stated, the jury found for the plaintiff and returned verdict for $10,583.33. The first point raised is that the jury was improperly instructed in the verdict directing instruction designated as “No. 1.” This instruction predicated a verdict upon the defendants having deceived and defrauded the plaintiff. The action was for a breach of warranty and one cannot sue on that and submit his case on fraud, Lorraine v. E. M. Harris Building Co., Mo.App., 391 S.W.2d 939. The plaintiff counsel concedes that neither the pleading nor the proof supports the instruction and he confesses the error asserted by the defendants-appellants.

The appellants also seek to have judgment reversed upon the ground that the plaintiff buyer did not comply with one of the terms of the contract. The contract contained the following provision:

“2. Buyer agrees to pay Sellers the purchase price of fifty-five thousand ($55,000.00) dollars, above, as follows: one thousand ($1,000.00) in cash upon execution of this agreement, forty-four thousand ($44,000.00) dollars in cash upon the date of the consummation hereof, and the balance of ten thousand ($10,000.00) dollars to be deposited in escrow with the First State Bank of Farmington, Missouri, on the date of consummation, to be held by said bank subject to the following terms and conditions :
“Should any claim or claims, demand or demands, or liability or liabilities, of any nature whatsoever, excepting for liabilities or claims adequately covered by valid policies of insurance, be presented to Farmington Transfer, Inc., prior to February 1, 1961, which said claim or claims, demand or demands, or liability or liabilities, contingent or otherwise is not disclosed on the balance sheet of Farmington Transfer, Inc., as of July 15, 1960, Buyer shall notify the said Bank thereof and unless Sellers pay or otherwise secure the full release thereof said Bank shall retain said Ten thousand ($10,000.00) dollars or so much thereof as may be necessary to save the Buyer and Farmington Transfer, Inc., harmless from said claim or claims, demand or demands, liability or liabilities until the same shall have been finally determined and released. With the approval of the Buyer and the Seller, the Escrow Agent shall pay any such claims, demand or liability directly to the claimant. In the event any such claim, demand or liability be the subject of litigation, Seller shall pay all expense and cost thereof, including attorney’s fees and in default thereof, upon the presentation to the Escrow Agent of receipts therefor, the Escrow Agent shall reimburse Buyer or Farmington Transfer, Inc. for sums so expended.”

Payments were made in accordance with the terms of the contract and the $10,000.00 was placed in “escrow.” There is no evidence that the buyer ever sought recovery from this fund or any evidence whatsoever about the fund. The appellants contend that since the buyer failed to prove that he had presented the claim to the escrow agent he is barred from recovery. It is, of course, true that where one sues on a contract he must generally prove his own performance under the contract. Bartlett v. National Finance Corporation, 228 Mo.App. 789, 73 S.W.2d 451; Rosen v. Alside, Inc., Mo., 248 S.W.2d 638. However, that rule would only be invoked where the failure to comply would in some way work to the disadvantage of the other party to the contract. Here the “escrow” arrangement was for the protection of the buyer. There is no evidence that his failure to employ the protection provided him did in any way work to the disadvantage of the sellers. This point is therefore ruled against the appellants.

The case must be reversed because of the erroneous instruction given. It must be re-tried. As stated, it was tried to a jury and they heard a mass of confusing testimony and were handed bundles of checks, a large stack of accounts payable, and a bundle of petroleum charge slips, all of which were obviously meaningless to the jury. We mention this so that the court and counsel upon re-trial will consider referring the case to a referee and their attention is directed to § 515.010 and § 515.020 V.A.M.S., which provide for the appointment of referee, by consent of parties, or by the court, where parties do not consent and the issue of fact requires examination of a long account on either side.

The judgment is reversed and cause remanded for a new trial.

RUDDY, P. J., and SAMUEL E. SEM-PLE, Special Judge, concur.

ANDERSON, J., not participating.


author: DAVID R. CLEVENGER, Special Judge.

text:
    Mary GASS, Respondent, v. Harry S. BOBBITT, Appellant.
    No. 24221.
    Kansas City Court of Appeals. Missouri.
    Oct. 4, 1965.

      William H. Sanders, Dean F. Arnold, Donald L. Dorei, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for appellant.
    Arthur J. Kase, Rubins, Kase & Rubins, Kansas City, for respondent.
   DAVID R. CLEVENGER, Special Judge.

This is an action for damages for personal injuries sustained by plaintiff Mary M. Gass when a car in which she was riding as a passenger was struck in the rear by an automobile driven by the defendant, Harry S. Bobbitt. The case was tried to a jury and resulted in a verdict and judgment in favor of plaintiff in the sum of $13,500.00. Defendant appeals.

Defendant’s assignments of error are directed to Instruction No. 1, to the trial court’s denial of an offer of proof, and to the amount of the verdict.

The automobile collision in controversy occurred at approximately 2:15 o’clock on the afternoon of July 24, 1962. Plaintiff was riding in the front seat of a car being driven by her husband. As the car was northbound on Belmont Road, in Kansas City, Missouri, it was struck from the rear by a car being driven by the defendant. That collision caused the Gass car in turn to collide with the rear end of a car directly in front of it.

It was plaintiff’s testimony that the accident occurred just north of the Montgomery Ward store, where the family had been shopping; that, at the time of the collision, she heard “the squeal of the brakes”, followed by the impact; and that it was all she could do to keep from being thrown through the windshield by the collision.

Plaintiff’s husband testified that the car directly in front of him was traveling in its right-hand lane at approximately the same speed as his car, ten or fifteen miles an hour, at the time of the collision; and that, as a result of the impact, his son, who was riding in the back seat, was thrown forward with such force as to break the front seat loose, and the plaintiff was thereby thrown forward against the instrument panel.

A police officer arrived at the scene of the accident some thirty minutes after the collision, and investigated the occurrence. Defendant made a statement to the officer that he was traveling at approximately thirty miles per hour just previous to the accident, and that when his car was some thirty or thirty-five feet away from the Gass vehicle Re observed it, attempted to avoid a collision, but could not do so. He stated that the pavement was wet and that his speed at the time of impact was twenty miles per hour.

The investigating officer testified that he measured thirty-three feet of skid marks laid down by defendant’s car to the point of impact, and that, at the time of his observation, the street was dry.

Plaintiff’s petition charged that the defendant “negligently and carelessly drove and operated his automobile in the same lane of traffic and behind the automobile in which she was a passenger so as to cause the same to overtake and run into and collide with the rear end of the automobile in which she was riding”. Defendant’s answer was a general denial, coupled with an allegation of contributory negligence. The defendant offered no proof as to his charge of contributory negligence, nor any instruction thereon.

It is our opinion that the proof adduced by plaintiff supported the allegations of her petition above quoted, which amount to a charge of a specific act of negligence on the part of the defendant in the operation of his car. In so doing, plaintiff brings her case well within the rule of the “rear-end collision doctrine”. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Coit v. Bentz, Mo.Sup., 348 S.W.2d 941.

The courts in this state have long been committed to the rear-end collision doctrine. See Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360 and Witherspoon v. Guttierez, Mo.Sup., 327 S.W.2d 874. In the Hughes case the court defined this doctrine as the “rule of law” that recognizes :

* * * if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.”

This “doctrine” as above stated was applied and re-affirmed in the Witherspoon case.

The Supreme Court, again further considering this doctrine, held that a case, properly submissible and submitted under the rear-end collision doctrine, is regarded as a submission of specific negligence. State ex rel. Spears v. McCullen et al., 357 Mo. 686, loc. cit. 691, 210 S.W.2d 68, loc. cit. 70(2); Gooch v. Lake, Mo.Sup., 327 S.W.2d 132. This court, in commenting upon the rear-end collision doctrine, held as follows in Croney v. Pence, Mo.App., 346 S.W.2d 574, loc. cit. 577:

“It is negligence for the operator of an automobile upon the public highways of this state, following another automobile proceeding in the same direction, to allow and permit the front of his automobile to come into violent contact and collision with the rear end of an automobile in front of him. The statement of these specific facts, accompanied by a charge of negligence, constitutes a charge of specific negligence”.

In his first point, defendant takes the position that plaintiffs evidence injected the question of skidding into the case and that consequently she was then compelled to hypothesize such fact of skidding in her verdict-directing Instruction No. 1. We do not agree with this contention. When a plaintiff has made a prima facie case and submits it without reference to evidence of skidding which may have appeared in the case, any issue arising from the fact of skidding would then be a matter of defense. The burden of proving that defendant was legally exculpated from the negligence charged against him, by reason of the fact that his vehicle skidded, rested upon the defendant. And, of course, the fact of skidding, being a matter of defense, it further follows that it would be incumbent upon the defendant to offer an instruction in support of such defense. The defendant did not take the stand, nor did he offer any proof whatsoever as to skidding or any other defense. He offered no other fact or circumstance excusing his otherwise negligent act. He relied solely on the plaintiff’s evidence of skidding and the plaintiffs omission to hypothesize such fact in her Instruction No. 1. We must and do rule here that a case properly submitted under the rear-end collision doctrine is a submission of specific negligence, and that the plaintiff has, under said doctrine, made a prima facie case. Under these circumstances, the defendant to prevail must of necessity offer some defense or take advantage of plaintiff’s evidence in his favor by instruction. Defendant did neither.

The defendant, in support of Point I, insists that the case, Wray v. King, Mo.App., 385 S.W.2d 831, presented a skidding situation similar to that appearing in this case. Our examination of the cited case, however, discloses that the skidding there shown was across the center line and into collision with plaintiff, and that the cars involved were traveling in opposite directions. Therefore, the Wray case is distinguishable because in it there was no overtaking and striking of plaintiff by the defendant. The court there was certainly justified in ruling that the facts shown failed to meet the test of the rear-end collision doctrine. Likewise, under the facts in the Wray case, it was proper for the court to hold, as it did, that where plaintiff’s case includes evidence of skidding by defendant’s automobile, plaintiff may not ignore “skidding” in his instructions. Again, we emphasize that the Wray case was not submitted under the rear-end collision doctrine, that it was not submitted under facts analogous to the instant case, and is, therefore, not applicable as authority here.

The defendant further urges that the case of Karch v. Stewart, Mo.Sup., 315 S.W.2d 131, supports his position. An examination of this case discloses the facts to be that the defendant’s car skidded across the highway into the path of plaintiff’s oncoming truck. Therefore, we cannot agree that Karch v. Stewart, supra, or Wray v. King, supra, present facts analogous to the case at bar, as in each of those cases the cars were not traveling in the same direction but were being driven in opposite directions. A review by us of other cases, including Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045, discloses that in none of these cases are the facts analogous to the case here, nor does defendant cite any case involving the question of skidding where the facts are in harmony with the case presented before us.

Having heretofore ruled that plaintiff’s petition, being supported by competent evidence, under facts clearly within the rear-end collision doctrine, was properly submitted to the jury under plaintiff’s verdict-directing Instruction No. 1, we, therefore, rule against defendant on this point.

Appellant next contends that the trial court erred in not permitting one of his witnesses, on redirect examination, to explain that a certain sign posted at or near the scene of the accident was for advisory purposes only and not to state the legal speed limit. The witness, Louis Medina, an employee of the Traffic Department of the City of Kansas City, testified on behalf of defendant that, according to ordinance, the legal speed limit at the scene of the accident was thirty-five miles per hour, even though there was a sign at or near such scene designating the speed limit to be twenty-five miles per hour. The appellant, upon being denied the right on redirect examination to elicit from the witness such explanation concerning the sign, properly made his offer of proof as to what the testimony of such witness would be, and the Court sustained the objection to the offer. In any event, the evidence was not admissible and the witness was not qualified to give or make the explanation.

The fact that the evidence before the jury was to the effect that, by city ordinance, the legal speed limit was thirty-five miles per hour and, it being undisputed, we do not believe the jury was either confused or misled in any way, by argument of counsel or otherwise, because of the reference to a sign of twenty-five miles per hour.

We note that there is no charge in plaintiff’s petition as to excessive speed. Neither was there an offer by either party of an instruction as to the question of speed. We hold that the trial court did not commit error in refusing defendant’s offer of proof.

Appellant’s third point is a complaint that the amount of the verdict is excessive.

The plaintiff testified that immediately following the impact, she had pain in her neck, shoulders, right arm and low back. Upon arriving home, she called her family physician and, on his advice, she was admitted to the hospital, where she remained in traction for two days. Before leaving the hospital, she was fitted with a cervical brace which she wore for four or five months. She returned to the doctor’s office on numerous occasions, where she received heat treatments and shots. Plaintiff complained of severe headaches, back and shoulder pains, loss of strength in her hand, and of being unable to carry on her usual household duties. These conditions continued to the time of the trial.

Dr. Richard Craig, the treating physician, indicated some twenty-two office visits for treatment in 1962, with five intermittent treatments through January and February of 1963, and twelve office calls 'from June through December. Thereafter, at the doctor’s office on eleven occasions, from January 18, 1964, to June 23, 1964, she received diathermy and ultrasonic treatments. Medication consisted of sedatives and tranquilizers.

The radiologist testified that the x-rays showed considerable persistent posterior bowing above the level of the fifth cervical vertebra, resulting in muscle spasm in the upper cervical area, which produced persistent contraction of the muscles.

Dr. Pickard, an orthopedic surgeon, appearing for plaintiff, testified that plaintiff’s condition was the result of the accident and that she had disability to the neck, with tension of the cervical muscles, and some wasting of the right arm, which he attributed to the lack of use of said arm due to her condition.

Dr. Craig also testified that, in his opinion, her injury was the result of the accident; that x-rays showed a persistent posterior bowing above the level of C-5, creating an abnormal alignment of the vertebrae; and that, although there were no fractured or broken vertebrae, the injury did result in an abnormal alignment of the vertebrae because of persistent muscle spasm which caused her head to be held in a forward position. He prescribed demerol and empirin, with codeine, for pain, and phenobarbital to induce sleep at bedtime.

Dr. Pickard testified that there was no improvement in her condition between the examination made by him on November 30, 1962, and the examination made in October of 1963, and that the injury which she had sustained to her neck was permanent.

Plaintiff testified that, prior to the accident, -the was capable of and did do her housework and considerable baking, but that after the accident she was unable to perform her usual household duties. This testimony was substantiated by several neighbors, some of whom testified that they observed her in pain and discomfort, and that she developed personality changes following the accident. These changes were evidenced by the fact that she had become withdrawn and despondent, and was no longer interested in or capable of participating in her former church and social activities.

Considering plaintiff’s testimony, supported by the evidence of her neighbors concerning her condition, and the doctor’s findings that she had sustained a permanent injury as a result of the accident, we rule that such evidence is sufficient to justify the jury’s verdict in the amount of $13,500.00.

The judgment is affirmed.

All concur.


author: SPERRY, Commissioner.

text:
    Samuel L. CHANEY, Respondent-Plaintiff, v. W. D. RAY, Appellant-Defendant.
    No. 24159.
    Kansas City Court of Appeals. Missouri.
    Oct. 4, 1965.

      David Waldman, Kansas City, for appellant.
    Robert ~J.- Edwards, E. E. Thompson, Pop-ham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff sued defendant for damages, allegedly suffered by reason of plaintiff’s reliance on false and fraudulent representations concerning the purchase by plaintiff, from defendant, of a one-eighth interest in an oil lease contract. Plaintiff had a verdict and judgment for $2,500.00, the amount of the original investment, plus $1,-262.50 interest. Defendant appeals.

Plaintiff was the only witness who testified in the case. Defendant’s chief contention is that no case was made. In ruling the sufficiency of the evidence in this case, where plaintiff was the only witness, plaintiff’s testimony will be accepted as true and he will be given the benefit of all favorable inferences of fact that may be reasonably drawn therefrom. Meyer v. Brown, Mo.App., 312 S.W.2d 158, 160; McClung v. White, Mo.App., 386 S.W.2d 678, 679. However, if plaintiff’s testimony was so contradictory as to be self destructive, without any reasonable explanation of the variance, as in Steele v. Kansas City Southern Railway, 265 Mo. 97, 175 S.W. 177, 181-182, and in Stoll v. First National Bank of Independence, 234 Mo.App. 364, 132 S.W.2d 676, 682, then no case was made because of the absence of evidence of probative value.

Plaintiff testified to the effect that, prior to March 25th, 1954, he was told by Mr. Kándlis, a friend, that Kandlis had previously invested in an oil venture with defendant ; that the investment had been financially satisfactory; that plaintiff, somewhat jokingly, told Kandlis that, if another similar deal arose, he might like to invest. He stated that Kandlis was in the grocery business and that he did not view him as an expert in the oil business; that his only connection with that business was as an investor; that plaintiff was in the insurance business and had no knowledge about leasing oil lands, or about drilling for or production of oil; that Kandlis informed him that defendant was very familiar with and experienced in these matters. He stated that, sometime thereafter, Kandlis told him that defendant had a new venture in the oil business; that, by agreement, Kand-lis arranged for plaintiff to meet defendant at the latter’s office; that Kandlis and plaintiff met at the defendant’s office where plaintiff was first introduced to defendant; that Kandlis then returned to his grocery store and that defendant, who was doing business as Wm. D. Ray Oil Co., and plaintiff, discussed the venture that gives rise to this lawsuit.

Plaintiff stated that defendant told him, in that conversation, that he and his co-investors had an oil well already drilled, that it was a producing well; that it was a producer; that it was producing from 3500 to 3600 barrels per acre; that the money he was putting in was to pay a part of the cost of that original well; that plaintiff was to receive a one-eighth interest in that well; that plaintiff told defendant that he was in the insurance business and that defendant was the oil expert; that defendant stated that he had been working on these leases for several years and that Kandlis had been with him on another venture down there; that he had been working in the area for two or three years; that plaintiff told defendant he wanted to see the site, to see what had been done; that Ray said some of the other investors were going down to see the location, near LeRoy, Kansas, on the following Sunday, March 28th, 1954; that plaintiff and his wife,, accompanied by her cousin, Mr. Tuttle, drove down to the location of the well; that Tuttle was in Kansas City, at the time, attending a Chemist’s Convention; that Tuttle was a Chemist; that he had had no experience in prospecting, exploring, drilling for or producing oil; that he was invited merely as a guest and in order that the parties might visit while on the trip; that plaintiff never asked Tut-tle for an opinion on the investment; that plaintiff took along his “still camera”, and took pictures of the machinery, the workmen, the investors, and the general surroundings; that he did that for his own amusement; that he talked with various persons, including the driller, Hardesty, who also had an interest in the venture; that the well was not pumping; that he was told that the workmen were then engaged in the process of “fracturing” the well (a procedure whereby the rock strata above the oil or gas is broken, so that oil and gas underneath the rock formation may escape, through cracks, into the main bore of the well) ; and that he, plaintiff, knew nothing about this procedure.

He stated that, while on this trip to see the site of the drilling activities, he talked to people there about this matter but that he did not rely on the advice of anyone that he saw regarding the production of oil at this location, or the future prospects with relation thereto; that he believed what defendant told him, in his office, that a well was then completed and had a production capacity of from 3500 to 3600 barrels per acre; that he relied on defendant’s statements as being true and as coming from an expert in that field; that he made his investment because of his reliance upon what defendant told him.

There was testimony to the effect that the well was not a producer, not financially profitable, as had been represented; that plaintiff received no money from his investment; and that defendant promised, and failed, to return his investment money.

Exhibit No. 2 was admitted in evidence. It purports to be an agreement between defendant, first party, and Charles Hardesty and Harold Kramer, referred to therein as contractors. By it, contractors agreed to drill oil wells on the farm of A. A. Ray under stated conditions and for stated considerations. It is signed by defendant and six others, including plaintiff. It bears date of March 4th, 1954.

Exhibit No. 3 is a typewritten “agreement” signed by defendant and all of the other parties who signed Exhibit No. 2. It is dated March 27th, 1954. Each of the six signers, other than defendant, agreed to pay two-twelfths of the total stated cost of drilling four oil wells located on the land described in Exhibit No-. 2.

Exhibit No. 1, introduced in evidence is a cancelled check for $2500.00, drawn by plaintiff and made payable to W. D. Ray Oil Co. It bears the endorsement of “W. D. Ray Oil Co., by W. D. Ray”. It is dated March 30th, 1954. On the face of the check appears: “for one eighth interest A. A. Ray Oil Lease, in Coffey County, Kansas”. Plaintiff stated that he gave it to defendant on account of the lease herein mentioned.

Plaintiff offered in evidence his Exhibit No. 4, a geological laboratory report on the production potentiality of the well but it was not admitted.

This case is based on fraud. In Lowther v. Hays, Mo., 225 S.W.2d 708, 713, the Supreme Court said: “ ‘Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker’s knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer’s ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon’ ”. (emphasis ours).

The Court further stated that fraud is never presumed but that each essential element thereof must be established by substantial evidence.

From the above stated facts, as condensed from the record, it is readily apparent that there is substantial proof of every essential element of fraud as defined by the Court. Plaintiff told defendant, when they first met, that he knew nothing about the oil business and defendant told plaintiff that he was experienced. Plaintiff had a right to believe him and rely on his representations. Nichols v. Hendrix, Mo.App., 312 S.W.2d 163, 165-166; Meyer v. Brown, Mo.App., 312 S.W.2d 158, 161; Schechter v. Brewer, Mo.App., 344 S.W.2d 784, 788. Plaintiff stated that defendant told him the well was completed, that it was a producer, that it would produce from 3500 to 3600 barrels per acre. The jury believed plaintiff’s unchallenged testimony, and it had every right to believe it. There were no such inconsistencies in plaintiff’s testimony as to support a ruling that his testimony is without probative value. McClung v. White, supra. There is no substantial evidence tending to prove that he relied on his own independent investigation and knowledge in making his investment, or that he was influenced to invest by reason of the advice or influence of persons other than defendant.

Defendant contends that plaintiff’s verdict directing instruction is prejudicially erroneous because of failure to require the jury to find all of the elements of actionable fraud. The instruction is not set out in the brief and the point made is not reviewable. Miller v. Wilson, Mo.App., 381 S.W.2d 31, 37. However, the instruction contains no misdirection and requires a finding of facts from which the jury could find that every element of actionable fraud had been established by the evidence. The point is ruled against defendant; Burns v. Vesto Co., Mo.App., 295 S.W.2d 576, 578.

Defendant’s criticism of instruction No. 3 is also rejected. The instruction is not set out in the brief; it is supported by the evidence; and it is not prejudicially erroneous as affecting the merits of the case. Papen v. Friedmeyer, Mo.App., 255 S.W.2d 841, 846.

Defendant complains of error because of the Court’s refusal to give his offered instructions A and B. Other instructions given by the Court fully covered the issues mentioned in A and B. The Court committed no error in so ruling.

The judgment should be affirmed.

MAUGHMER, C, concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.


author: MAUGHMER, Commissioner.

text:
    George E. SHEEN, Employee, Claimant-Appellant, v. Joseph DiBELLA, Employer, Respondent, Massachusetts Bonding and Insurance Company, Insurer, Respondent.
    No. 24232.
    Kansas City Court of Appeals. Missouri.
    Oct. 4, 1965.

      Richard A. Erickson, Donald W. Johnson, Kansas City, for appellant.
    Joseph B. Bott, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is a Workmen’s Compensation cast The award of the Commission, following a full hearing on the merits, denied compensation and was on review affirmed by the circuit court. Claimant has appealed on the sole ground that the determinative issues decided by the Commission and upon which the award was based had become res judicata by reason of a prior judgment entered by the circuit court in a common law action for damages.

To determine this appeal requires a review of the factual evidence heard by the Commission or Referee, including the statements made and evidence submitted in the common law action based upon negligence, which was brought by claimant against the named employer, as the same were incorporated into the transcript of the proceedings before- the Commission.

The defendant in the common law action and the alleged employer in the compensation claim is Joseph DiBella. He was the owner and operator of a tavern or restaurant located in Kansas City, Missouri, d/b/a El Serena Buffet. Some time prior to February 17, 1957, the date of the accident, he had extensively remodeled and renovated the premises in which his business was housed. The claimant George E. Sheen, then 72 years of age, was a contractor or construction superintendant. He supervised this remodeling and for his services was paid a fee amounting to ten percent of the cost and totaling more than $3,000. This work had been entirely completed before the accident occurred.

According to the evidence a catalpa tree, about 15 feet in height and 18 inches in diameter, stood close to the buffet building. Its leaves fell into the gutters and defendant wanted it removed. He expressed this desire in the presence of plaintiff and plaintiff offered to remove the tree. On Sunday, February 17, 1957, plaintiff, bringing' his electric saw, came onto the premises and assisted by one Virgil McGee, who was at the time regularly employed by defendant as a porter, cut down the tree. During the process a tree limb fell or rolled against and struck plaintiff, thereby allegedly injuring his leg and back.

It is conceded that DiBella employed regularly less than ten persons but had elected to operate under the provisions of the Missouri Workmen’s Compensation Act. His liability thereunder was fully insured by the Massachusetts Bonding and Insurance Company, which corporation had duly filed its notice of such coverage with the Commission. Mr. DiBella also carried personal liability insurance. His insurer for this coverage was the Western Casualty and Surety Company of Fort Scott, Kansas.

We quote from Section 287.120(1) V.A. M.S., Workmen’s Compensation:

“If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.” (Italics ours).

The statutory provisions just set forth mean and it is generally understood and it is true, that where the employer-employee relationship exists and where the accident “arising out of and in the course of his employment”, Workmen’s Compensation applies and is the exclusive remedy. In such a situation the common law action for damages, based upon negligence, will not lie. Conversely, if for any valid reason, the accident is not covered by the Act, then the common law action, if negligence can be shown, remains unaffected by the Compensation Act and available as a remedy for the injured person. In other words, the Compensation Act is not supplemental of the common law, but is wholly substitutional.

We shall mention two factual situations (there are others) which will take a claim for benefits out of compensation coverage. Stated otherwise, there are two requirements which must be proved before the employer becomes liable. It must be shown (1) that the employer-employee relationship existed and (2) that the accident arose out of and in the course of the employment. Neither the formal judgment of the circuit court as entered in the common law action and upon which claimant relies, nor the Court’s comment made prior to entry of the judgment, includes specifically either of these factual findings although such conclusions might be inferred therefrom. Both the formal judgment and the comment are set forth later in this opinion.

We shall attempt to relate the developments in this controversy chronologically. On March 28, 1957, the plaintiff Sheen filed in the Circuit Court of Jackson County, Missouri, Independence Division, a common law action for damages, allegedly arising out of the accident which we have described. In plaintiff’s petition in that suit it is alleged that plaintiff’s injuries were caused by the negligence of Virgil McGee, defendant’s porter and employee, who was assisting in the removal of the tree.

On December 17, 1959, this common law action came on for trial in the circuit court. Plaintiff appeared with the same lawyers who are now representing him. Since this suit sought to burden defendant with personal responsibility and did not assert any Workmen’s Compensation liability, it was to be expected that defendant’s personal liability insurer, the Western Casualty and Surety Company of Fort Scott, Kansas, would defend the suit and would conduct such defense by and through its attorneys. That is exactly what did happen. It should here again be noted that Western Casualty is a different insurance company from Massachusetts Bonding, the compensation insurer, and was represented by other and different attorneys. So far as is revealed by the record, Massachusetts Bonding had neither notice nor knowledge of the common law action until after its termination, nor did it take any part in that litigation.

A transcript or at least a partial transcript of the proceedings in the common law action was incorporated into the record of the Compensation hearing. It is short and we summarize a part of the contents. Preliminary to the trial or hearing before the circuit court, Mr. Deacy, representing Western Casualty (and ipso facto the defendant) stated to the Court that their preliminary defense was that DiBella “was a qualified employer under the Workmen’s Compensation Law with an approved insurer under the Act, and I will either prove this up in the process of the trial, which I am, of course, prepared to do, or, on the other hand, I am also prepared, to keep it from being introduced before the jury, to stipulate and agree with counsel as to those facts as to which I do not think there is any dispute.” The answer filed set forth such defense.

MR. JOHNSON: (representing plaintiff) : “We will stipulate.
MR. DEACY: “It is, then, stipulated and agreed that at the time of this occurrence in question the defendant, Joseph DiBella, was a qualified employer under the Missouri Workmen’s Compensation Act, and that if the plaintiff were an employee of defendant at the time of the injury as defined by the Act he and the defendant would be covered by the Act, and that at the time of the occurrence in question the defendant as an employer under the Act was covered by a policy issued by an approved insurer under the Act ?
MR. JOHNSON: “We will stipulate to that with the understanding that we are not stipulating that Sheen was an employee.
MR. DEACY: “I am not asking you to stipulate that.”

We conclude from the statements of counsel as above set forth that both groups of attorneys knew that DiBella was (a) a qualified employer, (b) had “an approved insurer under the Act”, and (c) Mr. Deacy said he was prepared to prove these facts. However, these very pertinent facts were not proved, but were in part stipulated by Mr. Deacy, representing Western, and by counsel for plaintiff. Did these attorneys have the authority to so stipulate on these matters which so vitally concerned Mr. DiBella and his compensation insurer Massachusetts Bonding if it resulted in establishing liability under the Act? Moreover, there was neither stipulation nor proof that that the accident and injury arose out of and in the course of any employment of plaintiff by DiBella.

The colloquy as set forth occurred out of the presence of the jury panel. A jury was then examined, qualified and selected. After that came a noon recess. There is partial agreement and partial disagreement as to what transpired during the noon recess. All parties agree that it was agreed to waive a jury and this was done in open court. Mr. DiBella says the case was “settled” by the attorneys during the noon recess. Counsel for plaintiff deny or at least do not admit this. Mr. Deacy for Western was not heard from on this point. We shall quote later on in part, verbatim, as to just what was said on this subject.

We incorporate additional remarks by counsel which were made in open court:

MR. DEACY: “This is a hearing on the issue of whether or not the plaintiff was an employee and the defendant was an employer and both of them were under the Missouri Workmen’s Compensation Law which has been asserted as a defense in this case ?
THE COURT: “That is the issue you asked the Court to try.
MR. DEACY: “Yes, we will ask the Court to try that issue and that issue alone.
THE COURT: "Very well.
MR. DEACY: “Preliminary to a trial on the other issues. And of course if the Court finds that the plaintiff and defendant are subject to the Act and that it is an exclusive remedy of the plaintiff, then the defendant would be entitled to a judgment in this action.
MR. JOHNSON: “The statement of the defendant is correct.”

Thereupon the defendant DiBella was called as a witness on behalf of plaintiff. On direct examination he testified that he was owner and operator of the buffet, had employed Sheen to supervise some remodeling work and had paid him for it. He said that when the accident occurred Sheen, with the help of defendant’s porter, “was trying to remove a tree.” He stated that Sheen “didn’t want nothing” for taking down the tree but he “gave him $15.00” after the accident. On cross-examination DiBella agreed that he maintained the building and paid plaintiff to remove the tree. The plaintiff was not called as a witness. No other or additional evidence was adduced. The hearing was closed. The trial court then made this comment:

THE COURT: “It appears from this evidence that the plaintiff and the defendant in this case were under the Workmen’s Compensation Law, from the evidence that I have heard. That being the defense, judgment in this case must be in favor of the defendant in the case.”

This comment, statement or finding by the Court expressed no clear conclusion that the accident arose out of and in the course of the employment and did not declare that plaintiff was a regular employee, part-time employee, statutory employee, independent contractor or volunteer. It expressed rather a denial of present and immediate jurisdiction. On the same day the following judgment was entered:

“Now on this day come the parties herein in person and by their respective attorneys, and now by agreement of the parties in open court, a Jury is waived in the trial of this cause, and the Court having heard the evidence and being fully advised in the premises, finds the issues in favor of the defendant and against the plaintiff.
“WHEREFORE IT IS ORDERED AND ADJUDGED BY THE COURT that the plaintiff have and recover nothing in this cause of action; that the defendant herein go henceforth discharged without day and have and recover of and from said plaintiff all costs incurred herein, and that execution issue therefor against the plaintiff.”

On December 23, 1959, six days later, a written document captioned “Covenant and Agreement” was signed by plaintiff and by his attorneys. By the terms of this document, in consideration of $2,000 to them paid by the Western Casualty and Surety Company, plaintiff and his attorneys agreed not to appeal from the circuit court judgment.

Mr. Erickson, one of plaintiff’s attorneys, testified at the compensation hearing relative to this settlement or covenant not to appeal. He said the oral negotiations leading up to it had been conducted by his associate Mr. Johnson and that the written settlement was entered into after entry of the judgment. We quote one question and answer on the subject:

“Q: (By Mr. Bott) Now, Mr. Erickson, as you know and I know we don’t have these agreements in writing until after the papers are filed, and after the papers have been drawn up. Now, the question was, if there wasn’t a verbal agreement that was entered in that Mr. Sheen would receive two thousand dollars prior to the time that the transcript was made?
“A: I don’t recall definitely whether that was pinned down. I doubt if it was. There were negotiations going on. Mr. Johnson was talking to Thomas Deacy about it.”

At the hearing before the Referee, Mr. DiBella testified that the settlement was agreed upon during the noon recess, before the agreement to waive a jury had been made and before any testimony was heard.

Thereafter, Mr. Sheen, by and with his attorneys, Mr. Erickson and Mr. Johnson, filed a claim for Workmen’s Compensation. At the hearing thereon, in addition to the testimony above relative to the circuit court action, there was medical evidence as to plaintiff’s injury, with which we are not concerned on this appeal. Plaintiff testified regarding his supervision of the remodeling, and said he had been paid for it. He stated that “there was no arrangement at all with regard to pay” for removing the tree, that DiBella had expressed a desire to have the tree removed and he (Sheen) offered to remove it. However, he said DiBella did pay him $15.00 after the accident. The defendant DiBella was called by plaintiff. In response to a question as to whether or not he was Sheen’s employer at the time of the accident, he said: “Well, I’ve got the same answer as I did before. He come down to chop down a tree.” Relative to the supervising of the remodeling work, he said he paid Sheen “ten percent as the contractor”; that he discussed the tree in Sheen’s presence but never made an arrangement for Sheen to remove it, that Sheen said he would bring his saw down and cut the tree and he did so. He stated further that at the time of the discussion Sheen insisted there would be no charge for the removal of the tree but that he, the defendant, said: “No, George, I have to pay somebody, and he says ‘No, you won’t pay me a thing’ ”.

The Referee denied compensation. On appeal the Commission unanimously affirmed, as follows:

“We find from all of the evidence that George E. Sheen was neither an employee or statutory employee of Joseph DiBella, d/b/a El Serena Buffet, at the time he sustained an accidental injury on February 17, 1957.
“We specifically find that George E. Sheen was not in the service of Joseph DiBella, d/b/a El Serena Buffet, under any contract of hire, express or implied, oral or written, at the time he sustained his accidental injury, but rather, that the said George E. Sheen was then and at that time a volunteer.
“Compensation, therefore, must be and the same is hereby denied.”

On review, the circuit court affirmed the Commission’s award and claimant has appealed.

Appellant on appeal presents only one assignment of error. He says the award, as affirmed by the circuit court, is based solely upon its factual findings, that Sheen was not an employee, but was rather a volunteer at the time of the accident. It is true that such was the finding. Stated differently, but in accordance with the statutory requirements, it was a finding that at the time of the accident claimant was (a) not an employee but a volunteer, and (b) the accident did not arise out of and in the course of any employment plaintiff had with the defendant. We believe that such findings are supported by the evidence and plaintiff on this appeal does not contend otherwise. However, that is not the question before us. Plaintiff says that the circuit court judgment entered prior to the filing and hearing of the compensation claim, decisively determined all of these facts exactly contra, that such judgment became final and is res judicata on the issues as to- whether or not Sheen was an employee at the time of the accident and whether or not it arose out of the employment, and that the Commission erroneously undertook to determine these questions anew and that it exceeded its authority when it did not accept and adopt such circuit court findings, regardless of the evidence, and proceed merely to compute the amount of plaintiff’s benefits.

Commenting upon the scope of the Compensation Act, the court in State ex rel. National Lead Co. v. Smith, Mo.App., 134 S.W.2d 1061, 1065, said:

“The Workmen’s Compensation Act-is a complete code governing all questions of substantive right under its terms; and in cases cognizable before the Commission its jurisdiction is exclusive; it is not cumulative to or supplemental of common law but is wholly substitutional;.”

In McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149, 155, the Supreme Court said:

“It is well settled that the Workmen’s Compensation Act is wholly sub-stitutional in character and that any rights which a plaintiff might have had at common law have been supplanted and superseded by the act, if applicable.”

In this McKay case a common law judgment for plaintiff was reversed outright, the appellate court ruling that defendant’s answer, plaintiff’s admissions and the evidence established as a matter of law that the Compensation Act applied to plaintiff’s accident.

In cases cognizable before it, the jurisdiction of the Commission is original and exclusive. Many years ago the Supreme Court (Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330, 332) used this language in declaring the rule:

“In all cases cognizable by the Compensation Commission its jurisdiction is exclusive. Whether or not the case comes within the provisions of the act is a question of fact.”

Our own court (Barbus v. Rinor et al., Mo.App., 197 S.W.2d 1008, 1009) enunciated the same principle this way:

“Whether a case comes within the Workmen’s Compensation Act is a question of fact for determination by the Commission; but whether there is any substantial evidence bringing the case within the Act is a question of law for determination by the court.”

In Liechty v. Kansas City Bridge Co. et al., Mo., 162 S.W.2d 275, 279, the court commented :

“And, while it is true that the Commission cannot usurp judicial functions contrary to the constitutional inhibition, it has those powers which are incidental and necessary to the proper discharge of its duties in administering the Compensation Act, * * * and it frequently happens that a full discharge of those duties requires the Commission to determine questions of a purely legal nature, such as whether the employee was covered by the contract of insurance or whether the employee had received a compensable injury in the course of his employment; whether the alleged employee was an independent contractor or whether he was employed by an independent contractor rather than by the alleged employer. These and many other judicial questions, as far reaching as the question of law involved in this case, have uniformly been held to be proper questions for the Commission’s determination in the proper administration of the Compensation Law.” (Italics ours).

100 C.J.S. Workmen’s Compensation § 383, p. 139, phrases it this way:

“A workmen’s compensation board or commission is generally clothed with full and complete jurisdiction to determine in the first instance all questions arising under the compensation law.” (Italics added).

There are numerous cases, including Hines v. Continental Baking Co. Inc., Mo.App., 334 S.W.2d 140, 84 A.L.R.2d 1027 (chiefly relied upon by claimant) holding that where there has first been a full and complete hearing on the merits before the Commission, with all interested parties present and the Commission has entered an award finding the Act not applicable because there was no employer-employee relationship or the accident did not arise out of the employment and such award or judgment has become final, it is res judicata and defendant who has successfully asserted before the Commission that the Act did not apply is precluded or estopped to assert the contrary in a later common law action. This seems to be a sound position. The Hines case is the subject of an extensive annotation and therein (84 A.L.R.2d 1050) we find this statement:

“It has been generally held that a determination by a workmen’s compensation tribunal that an employee’s injuries (or death) did not arise out of and in the course of his employment is conclusive in an action at law brought to recover for the same injuries (or death).”

There is a line of authority in accord with the McKay case, supra, where (1) defendant in the common law suit pleads applicability of the Compensation Act, (2) defendant testifies under oath that such is the fact and (3) there is a full, complete adversary contest or. the merits and (4) the court finds the evidence that the Act applies is so overwhelming as to pass from a fact question to one of law, then the court may act. But where the applicability of the Act is in real dispute and where the evidence, including the admissions, is not so overwhelming as to pass from a disputed question of fact to an unalterable legal conclusion, does the circuit court have jurisdiction to make factual findings determinative of the issues even in a suit brought before it originally or should it refuse to accept jurisdiction until the Commission has acted? If in such situations the circuit court accepts all such cases brought before it and attempts to act with finality when the issue of jurisdiction is raised, is it not assuming concurrent jurisdiction with the Commission and in essence nullifying the legislative intent and enactment which placed exclusive original jurisdiction with the Commission? We find no Missouri case holding that the courts have such concurrent jurisdiction but find many to the effect that the Commission has exclusive and original jurisdiction.

Now as to the guidelines whieh have been laid down in the application of the doctrine of res judicata generally and as a legal principle :

“Res judicata is a rule of universal law pervading every well regulated system of jurisprudence, and is put on two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the state that there should be an end to litigation; the other, the hardship on the individual' that he should be vexed twice for the same cause.” 50 C.J.S. Judgments—Res Judicata, § 592, p. 11.

In Richter v. Frieden et al., Mo.App., 243 S.W.2d 783, 787, the court incorporated with approval this declaration from Motley v. Dugan, Mo.App., 191 S.W.2d 979, 983:

“A judgment rendered on any grounds which do not involve the merits of the action may not be used as a basis for the operation of the doctrine of res adjudicata.”

In State ex rel. National Lead Co. v. Smith, Mo.App., 134 S.W.2d 1061, claimant had first filed a common law action. Applicability of Workmen’s Compensation and therefore lack of jurisdiction was interposed as a defense. The court sustained the plea and dismissed the suit for want of jurisdiction. In a later suit based upon the same claim, the defense of res judicata was disallowed because the first judgment was not entered after a trial on the merits and a judgment or dismissal for want of jurisdiction is never res judicata as to the merits of the cause. 1 Bouv. Law Dict. Rawle’s Third Revision, p. 1719, gives the following definition as to the meaning of the term “judgment on the merits”: “Judgment on the merits is one rendered after argument and investigation and when it is determined which party is in the right, as distinguished from a judgment rendered upon some preliminary or merely technical point, or by default, and without trial”. In 50 C.J.S. Judgment § 627, pp. 51, 53, we find the general declaration in this language:

“In order that a judgment may operate as a bar to a subsequent suit on the same cause of action it must have been based on the merits of the case.”
“A judgment is not on the merits if the case went off on any preliminary, subsidiary, or technical plea or objection. Accordingly, a judgment for defendant on the ground that the court is without jurisdiction is not a bar to a subsequent action.”

Regardless of the phraseology used or the terms in which it is couched, a judgment cannot transcend or extend over, above and beyond the issues which were raised and presented. 49 C.J.S. Judgments § 441, pp. 872, 873, tells us:

“A judgment should be construed with reference to the issues raised in the case and which are intended to be decided, and the scope of the judgment is not to be extended beyond the issues raised in the case, or the state of facts and situation of the parties existing at the time of the action.”

In the circuit court hearing which resulted in entry of the judgment, counsel spoke of their “preliminary defense”, requested that the court try “that issue and that issue alone” and the court agreed to do so. We do not believe that prior to the entry of the circuit court judgment in our case that there had been such a “trial on the merits” or “judgment on the merits” as is required for such judgment to acquire res judicata status. We believe that the circuit court judgment was actually one for defendant on the ground that the court believed it was without jurisdiction. As stated in 50 C.J.S., supra: “[A] judgment for defendant on the ground that the court is without jurisdiction is not a bar to a subsequent action.” In our opinion the judgment here relied upon is just such a judgment and is not res judicata.

We rule that appellant’s sole assignment of error or contention on appeal, that is, that the judgment of the circuit court is a final, binding and conclusive adjudication that plaintiff was defendant’s employee within the Workmen’s Compensation Act and that the accident arose out of and in the course of his employment, so as to require the Commission to accept such determination as res judicata and proceed only with the award of benefits, is not a point well taken. We overrule the assignment for the following reasons:

(1) The circuit court judgment, including the court’s comment, did not squarely determine, after a full hearing on the merits, that the employer-employee relationship existed and that the accident arose out of and in the course of the employment within the meaning of the Compensation Act, but rather that such defense having been raised, the court was without jurisdiction unless and until such fact questions were decided by the Commission, which body had exclusive original jurisdiction thereof; (2) The circuit court trial or hearing culminating in the judgment relied upon by claimant was not in actuality and did not, even purport to be a “trial on the merits” and therefore could not become res judicata on the fact issues relative to employer-employee relationship and if the accident arose out of and in the course of the employment. Even if the court’s comment is treated as a part of the judgment, it did not even attempt to declare, determine or decide if claimant was a regular employee, part-time employee, statutory employee, or volunteer; (3) The circuit court judgment is in fact, under any reasonable appraisal of the circumstances under which it was entered and the points presented for determination, a dismissal of plaintiff’s suit or a judgment for defendant for the sole cause of want of jurisdiction and such a judgment in any type of case is not res judicata as to the merits of the controversy, or any integral part of such merits, and does not preclude a later and actual trial on the merits before a tribunal having jurisdiction. Stated differently, it was the court’s conclusion that plaintiff had misconceived his remedy or had brought his suit prematurely or that the cause was not yet ripe and ready for adjudication in that forum, hence the judgment against him. In such a situation the merits of the controversy, pro and con, have not been adjudicated at all, much less with finality. The disposal was based upon lack of jurisdiction.

Since entry of the circuit court judgment the Commission has, after a full hearing on the merits, determined that plaintiff was not an employee, and that the accident did not arise out of any such employment, and that the injury is not compensible under the Act.

Plaintiff says the Commission finding and the circuit court judgment taken together leave him impaled on the horns of a dilemma — that his claim has been tossed out of both forums, that nowhere can the merits of his action be litigated and that such an end result amounts to manifest injustice. We agree with plaintiff’s conclusion but disagree with his premises. If and when the Commission award or judgment becomes final, then, except for the settlement which plaintiff made with defendant and with defendant’s personal liability insurer as to his common law action (and bypassing any possible statute of limitations hurdle) we have little doubt but that plaintiff could then bring his common law action and litigate it on the merits, and that the existing circuit court judgment against him on the basis of lack of jurisdiction could not be successfully interposed as being res judicata of the matter and a bar to such suit. Such a judgment entered for lack of present jurisdiction is just not res judicata of the controversy.

We hold that the Court did not err in affirming the award of the Commission and the Commission did not err when it determined after hearing evidence and upon the merits, the fact questions as to (1) whether or not plaintiff at the time of the accident was an employee of the defendant and (2) if the accident did or did not arise out of and in the course of such employment, both within the purview and within the meaning of the Workmen’s Compensation Act. The judgment of the circuit court was not res judicata as to these fact issues and the Commission was not precluded by such judgment from examining and adjudicating such issues on the merits.

Appellant has presented no other or additional assignment of error. 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: HOWARD, Judge.

text:
    AVIATION ENTERPRISES, INC., by H. F. Jones, Blanche Jones, Edwin Earnshaw, Charles F. Bishop and Theldon B. Zaugg, its Directors, Appellant, v. Merle A. CLINE, Respondent.
    No. 24244.
    Kansas City Court of Appeals. Missouri.
    Oct. 4, 1965.

      William Harrison Norton, Williams, Norton & Pollard, North Kansas City, for appellant.
    William A. Rundle, Jr., William J. Thompson, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondent.
   HOWARD, Judge.

This is a suit by the corporate plaintiff for property damage to an airplane rented by plaintiff to defendant and expenses incurred by plaintiff in connection therewith when the plane, piloted by defendant, ran off the end of the runway, through a fence, and onto the edge of a highway, when defendant attempted to land the plane at War-rensburg, Missouri, on the morning of August 30, 1959. Plaintiff’s cause of action is based upon the negligence of defendant as pilot, which plaintiff contends resulted in the crash landing and damage to the plane and expense to plaintiff. Plaintiff’s prayer was for a total recovery in the amount of $7,500.00. Trial to the court, without a jury, resulted in a judgment for defendant and plaintiff has duly appealed to this court.

At the trial plaintiff attempted to show negligence on the part of defendant through the testimony of expert witnesses. Repeated attempts by plaintiff to secure answers to hypothetical questions were thwarted by the court sustaining objections to such questions. Plaintiff alleges error in such rulings, but in the view we take of this case, it will not be necessary to discuss these alleged errors or the correctness of the hypothetical questions asked, because such problems can be obviated in the re-trial of this case, without our extended discussion thereof.

Plaintiff also attempted to show negligence on the part of defendant by offering in evidence a photostatic copy of an accident report submitted by defendant to the Civil Aeronautics Administration. This report was first offered without any identification or the testimony of any witness in support thereof. When such offer was refused, plaintiff then called the defendant to the stand, as an adverse witness, for the purpose of identifying the report and his signature thereon. Defendant admitted that the photostatic copy contained a photostatic copy of his signature, that Re made such a report and that he signed such a report. He further testified that he did not recall when, or to whom, he made his report; that the statement contained in the report describing what happened in the accident was not true or not complete and that he did not recall whether or not he had made such a statement.

The offer of the report in evidence was denied by the court on the ground that the photostatic copy was not the best evidence.

Plaintiff offered this report as containing an admission against interest by defendant, who signed the report. In answer to the question, “What happened?”, the report stated: “Landed Southeast with full load of passengers and gasoline — wind absolutely calm. Runway was downhill. Landed too far down runway and did not want to attempt going around because of power lines at end of runway and because of full load in plane.”

It is plaintiff’s contention that the best evidence rule does not apply to the use of secondary evidence such as the photostatic copy here in question when the document is offered to prove an admission of a party which is contained in such document. The parties have not cited any Missouri cases exactly in point and which govern the disposition of this appeal. Considerable research by the writer has not disclosed any such Missouri case, and, in fact, very few cases presenting a similar situation have been found in the United States.

While no discussion of the fundamental principles of the best evidence rule is here required, it must be kept in mind that the rule does not operate to exclude secondary evidence in all instances, but only to prefer primary evidence (the original document) over secondary evidence. Where the primary evidence is unavailable, secondary evidence is then permitted on a proper showing. The rule is not applicable in all instances where documentary evidence is offered, or, to state it another way, there are exceptions to the application of the rule requiring* documentary originals.

These exceptions are based upon the reasoning which is set out in 2 Conrad, Modern Trial Evidence, Section 773, pages 5 — 6, as follows: “When it appears that secondary evidence is clearly equal in probative value to primary proof and that fraud or imposition is not to be feared, the reason on which the best evidence rule rests ceases to be applicable”.

Many cases have stated that the best evidence rule has no applicability to instances where the evidence is offered on a collateral matter. Thus it is said that where the issue that the evidence tends to prove is collateral to the main issue in the case and is not fundamental to the cause of action or defense that the best evidence rule does not apply. See 22 C.J. Evidence Section 1224, p. 978, 32A C.J.S. Evidence § 781, p. 100. This particular exception has been recognized and applied by Missouri courts in such cases as In re Mingo Drainage District, 267 Mo. 268, 183 S.W. 611; Morgan v. Garretson-Greason Lumber Co., 105 Mo. 239, 79 S.W. 997; and Levelsmeier v. St. Louis and S. Ry. Co., 114 Mo.App. 412, 90 S.W. 104.

It also appears that where the contents of the writing is not directly in issue, although the evidence contained in the writing may bear upon a fundamental issue in the case, that the best evidence rule does not apply and that secondary evidence may be used without accounting for the original document. 32A C.J.S. Evidence, § 787, p. 109. It should also be remembered that in many instances the fact to be proved exists independently of any writing; that it incidentally happens that there is evidence of such fact contained in a writing, as well as other evidence of such fact which exists completely independent of any writing. In such situation, both the written document and oral testimony constitute primary evidence of the independent fact. In such situation, either documentary or parol evidence may be used to prove the independent fact and the best evidence rule is not applicable. 32A C.J.S. Evidence § 786, p. 107; 20 Am.Jur. Evidence, Section 405, p. 366; 1 Jones on Evidence (5th ed.) Section 235, p. 455.

This exception permitting secondary evidence to be used to prove collateral issues has found wide acceptance throughout the country, although the cases seldom provide a careful analysis as to whether the exception applies only where the fact to be proved is collateral to the fundamental issues in the case, or whether it also applies where the existence of the document is collateral to the case, but the evidence contained therein goes to prove one or more of the issues fundamental to or forming a foundation for the cause of action. See Ruppert v. Hermleigh Cooperative Gin and Supply Co., Tex.Civ.App., 133 S.W.2d 305; Delvitto v. Schiavo, 164 Pa.Super. 338, 64 A.2d 496; Peterson v. Lott, 200 Ga. 390, 37 S.E.2d 358; Waters v. W. O. Wood Realty Co., Ala., 71 So.2d 1.

In the present case, the existence of the accident report is certainly collateral to any issue. Plaintiff’s case does not rest upon such report; neither is it necessary for plaintiff to prove the existence of the report. The foundation of plaintiff’s cause of action is the negligence of defendant as pilot of the crashing airplane. It is only incidental that the report contains a statement made by defendant which constitutes an admission by him against interest, which is evidence bearing upon the question of his negligence.

It would thus appear that since the existence of the accident report, as such, is not an issue in the case, and the contents of the report is only incidentally and collaterally pertinent to the case, that the photostatic copy of the report might well be admissible under the authorities discussed above. However, since the documentary evidence was offered as an admission, there is even stronger reason and more convincing authority for its admissibility.

It is said in 22 C.J., Evidence, Section 1221, p. 976: “ * * * where it is sought to use a written statement as an admission, the best evidence rule does not apply, but a copy of the writing or parol evidence of its contents is admissible”. This principle is stated in the following language in 2 Conrad, Modern Trial Evidence, Section 774, p. 7: “Another important qualification of the best evidence rule relates to the admissions of a party in interest * * *. the best evidence rule does not apply to the admissions of parties.” See also 32A C.J.S. Evidence, § 788, p. 110, and 20 Am.Jur., Evidence, Section 406, p. 367, Section 579, p. 488.

Although the cases do not always clearly so distinguish, the question of the applicability of the best evidence rule to admission by the parties can be divided into two categories. One concerns oral admissions by the party of the contents of a document and the other concerns a document which contains written statements which may be admissible in evidence as admissions of the party executing the document.

The courts of the various states are not unanimous in their acceptance of the doctrine that an oral admission by a party as to the contents of a document is admissible to prove such contents. However, the best reasoned cases seem to accept such admissions of a party. See Smith v. Palmer, 60 Mass. (6 Cush.) 513; Kelly v. McKenna, 18 Mich. 381; Clarke v. Warwick Cycle Mfg. Co., 174 Mass. 434, 54 N.E. 887; Metropolitan Life Insurance Co. v. Hogan, 7 Cir., 63 F.2d 654.

The case of Purinton v. Purinton, 1906, 101 Me. 250, 63 A. 925 is a typical example of this line of cases. Here in a divorce suit plaintiff husband was attempting to show a course of improper correspondence between his wife and another man. Such letters were carried by a third party, who appeared as a witness for the husband and testified that the wife had read to him from the letters she sent to and received from the other man. The court permitted the witness to recite what the wife had said in reading from these letters. The court held that the best evidence rule did not apply to such admissions by the wife and that the witness could testify to the statements made by the wife to prove the contents of the letters.

The cases that criticize these above holdings and refuse to allow proof of oral admissions of the contents of documents place their chief reliance for such ruling on the ease with which evidence of such oral admissions might be manufactured and the danger of perjury in connection therewith. Such dangers are, of course, not a compelling reason in the case at bar, where we have a photostatic copy of a document, complete to and including the photostatic copy of the admitted signature of the defendant.

In the relatively few cases found which consider the applicability of the best evidence rule to the use of copies of documents as evidence of admissions against a party to the lawsuit the courts of the various states seem to agree that the rule does not apply to bar the use of secondary evidence in such situation. Thus in Rhineland Union Gin v. Volunteer State Life Ins. Co. (Tex.Civ.App.) 113 S.W.2d 925, the court specifically stated that where a document is used as an admission, the best evidence rule does not apply, and either a copy of such document or parol evidence of the contents thereof may be introduced in evidence without accounting for -the original document.

In Swing v. Cloquet Lumber Co., 121 Minn. 221, 141 N.W. 117, L.R.A.1918C, 660, the Supreme Court of Minnesota held that a written letter of transmittal identifying an insurance policy, specifying the face amount thereof, and showing certain of its provisions was admissible as an admission of the issuance and certain of the provisions of said policy; that, since the letter was offered as an admission of a party to the case, the best evidence rule did not require the production of the insurance policy, or a showing that it was impossible to produce it. The same court in Wentz v. Guaranteed Sand and Gravel Co., 205 Minn. 611, 287 N.W. 113, held that copies of income tax •returns and corporate records were admissible as admissions against a party to the action; that the best evidence rule was not applicable and that there was no necessity to produce or account for the non-production of the originals. See also Mecaskey v. Bewley Mills (Tex.Civ.App.) 8 S.W.2d 688; Vogan v. McLaughlin, 172 Cal.App.2d 65, 342 P.2d 18.

In Bruce v. McClure, 5 Cir., 220 F.2d 330 the question at issue was whether or not the president had advanced money to his corporation as a loan, or had paid it to the corporation in purchase of its stock. A document found in the corporate minute book by the receiver was offered in evidence. The document was not dated, did not bear the necessary signature of all the directors waiving notice of the meeting, and was not signed or sealed by the secretary. However, it was signed by the president. The court held that such document was clearly not admissible on any other theory, but that since it was signed by the defendant, as president of the- corporation, it was admissible against him individually as an admission. The court pointed out that the above noted defects would properly go to the weight to be given to such evidence, but did not affect its admissibility.

We therefore conclude, on the basis of the foregoing authorities, that the best evidence rule is not properly applicable to the photostatic copy of the accident report offered as an admission against the defendant, who admitted that his signature appeared thereon. Such document is admissible in evidence and the trial court erred in excluding it.

In his brief defendant contends that Missouri applies the best evidence rule to exclude oral evidence of an admission concerning the contents of a written instrument. Only the one case of Bank of North America v. Crandall, 87 Mo. 209 is cited to support this argument. This is not the holding of this case. In the Crandall case, one party had made a formal admission during the trial of the case that certain things were contained in or decided by a final judgment -in another lawsuit. On the basis of this admission, the trial court refused to allow the opposing party to introduce in evidence the record of such judgment. The Missouri Supreme Court held that such refusal was error. One reason for this holding was that the judgment itself was much broader than the admission made by the party. Clearly, this is not applicable to the case at bar.

In Winn v. Gulf, Mobile and Ohio R. Co., Mo., 284 S.W.2d 455, our Supreme Court held that when the party admitted his signature on a document offered as an admission against the party, such document was admissible. It was further pointed out that testimony by the party that “he did not know” whether the pertinent part of the statement was contained therein when he signed the paper, or that he did not read the statement, or that he did not make the admission as written in the statement, or denying that the document offered was the statement that he signed, or otherwise casting doubt on the accuracy of the statement, all went to the weight of the evidence and did not affect its admissibility. Thus in the case at bar, since the defendant Cline has admitted that the accident report bears his signature, it is admissible, and his testimony that the portion relied on as an admission was not true, or was not complete, or that he did not make such statement, or that he did not know whether or not he signed the report in blank, would all go to the weight to be accorded the evidence by the trier of fact, and did not affect the admissibility of such document in evidence.

It is abundantly clear that the defendant has a right to explain or cast doubt upon the accuracy or truthfulness of this report in any way that he may see fit. In fact he can even offer evidence for this purpose that would not otherwise be admissible. But such right to explain can not affect the application of the best evidence rule to the admissibility of the document. See in this connection such cases as O’Sullivan v. Wells, Mo.App., 10 S.W.2d 313.

Although it was not mentioned at the trial, defendant in his brief in this court now contends that the accident report is not admissible because of the provisions of Section 1441(e), Title 49 U.S.C.A., which provides:

“(e) No part of any report or reports of the Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports.”

Defendant relies on the case of Berguido v. Eastern Air Lines, Inc., 3 Cir., 317 F.2d 628 as supporting this contention. This case points out that it is only matters of evaluations, opinion and conclusions as to the causes of airplane crashes that are excluded from evidence by this statute. To the same effect see Fidelity and Casualty Company of New York v. Frank, D.C., 227 F.Supp. 948. The case of Tansey v. T.W.A., D.C., 97 F.Supp. 458 specifically holds that the report by the pilot of a crashed aircraft is not excluded from evidence by this statute.

For the error noted in the exclusion of the accident report, the judgment of the trial court is reversed and the cause remanded for new trial.

All coneur.