author: HENLEY, Judge.

text:
    William WALLIN, Guardian of May Wonder, Appellant, v. STATE DEPARTMENT OF PUBLIC HEALTH AND WELFARE, Respondent.
    No. 53335.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1967.
    Rehearing Denied Jan. 8, 1968.
    E. L. Bartram, Maryville, for appellant, May Wonder.
    Elmore G. Crowe, Chief Counsel, Division of Welfare, Jefferson City, for respondent.
   HENLEY, Judge.

This is an appeal by William Wallin, guardian of May Wonder, from a judgment of the circuit court of Nodaway county affirming a decision of the Director of the Department of Public Health and Welfare (hereinafter referred to as Director) that May Wonder (hereinafter sometimes referred to as Claimant) is ineligible for old age assistance benefits. On appeal to the Kansas City Court of Appeals that court reversed the judgment and remanded the cause with directions to enter judgment in favor of Claimant, that she be reinstated on the old age assistance rolls as of November 5, 1965, and that she be paid such sum as she would have received had she not been removed from the rolls. We ordered the case transferred to this court, on application of respondent. Article V, § 10, Constitution of Missouri, V.A.M.S.

At the time of the hearings before the Director in January and May, 1966, Claimant, a widow 87 years of age, resided at the Wallin Nursing Home in Nodaway county. She is almost blind, suffers from a heart condition requiring regular medication, is unable to care for herself and is confined to a wheelchair. She entered the Nursing Home (owned by her guardian, William Wallin) in September, 1961, and, except for two short periods of time, has resided there continuously since that date. The cost of her care and maintenance is approximately $157 per month, including expenses for medical care and medicine. When she became a patient at the Nursing Home she was the record owner of real estate, her home, in Maryville, Missouri, acquired in 1959 or 1960. She was on the old age assistance rolls when she entered the Home, and had been for several years. On November 5, 1965, she was removed from the rolls by the Nodaway County Welfare Office for the reason that she owned real property (her home) of the value of $3,500 which was considered a resource available to meet her needs rendering her ineligible for public assistance, because 24 months had elapsed since she last occupied her home.

From the order removing her from the rolls she appealed to the Director, her chief contentions being: (1) that a fair appraisal of her property had not been made; and, (2) that her debts had not been considered, as a result of which the fair net value of her property had not been determined. The Director conducted two hearings at which Claimant’s representatives were given every opportunity to present evidence in support of her contention that she was eligible for public assistance and should not have been removed-from the rolls. Because of her condition she was unable to attend either hearing; however, at the first hearing she was represented by, Helen Ditto, wife of her nephew, Everett Ditto; at the second she was represented by her guardian, her present attorney, and her nephew. All evidence heard and presented to the Director was preserved and, as certified by the Director, constitutes the record on which we review the case. Sections 208.100 and 208.110 (all statutory references are to RSMo 1959 and V.A.M.S.); Thornsberry v. State Department of Public Health and Welfare, 365 Mo. 1217, 295 S.W.2d 372, 374 [2],

Based on that evidence, the Director ruled June 16, 1966, that Claimant was ineligible to receive old age assistance benefits for two reasons: (1) on November 5, 1965, she owned property of the value of $2,500, an available resource sufficient to meet her needs within the meaning of § 208.010, subd. 2(6) and Division of Welfare Rule and Regulation No. 13; (2) she transferred her property April 4, 1966, to her nephew, Everett Ditto, and his wife, without receiving a fair and valuable consideration. Section 208.010, subd. 2(1) (a).

As stated, our review of this case is on the record of the hearings before the Director. Thornsberry, supra. “Reversal and remand to the Director is authorized by Sec. 208.100 subd. 5, if his decision was arbitrary or unreasonable. * * * We have held that only if the Director’s decision is not based on substantial evidence, can his findings of facts and order based thereon be characterized as arbitrary or unreasonable and his determination reversed for that reason. Ellis v. State Department of Public Health & Welfare, [365 Mo. 614] 285 S.W.2d 634 and cases cited. Therefore, the only question to be determined herein is whether the findings and order are supported by substantial evidence.” Thornsberry, supra, 1. c. 374— 375.

In determining whether there is substantial evidence to support the Director’s decision we may consider only the evidence most favorable to the Director’s findings and order. “That the circuit court might have, or that an appellate court, upon consideration of the record evidence de novo, could reach the opposite conclusion from that reached by the Director is neither of consequence upon, nor determinative of this appeal.” Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W. 2d 817, 820 [4], and cases cited. As indicated, we do not review the record de novo for the purpose of making our own independent determination of the issues.

The burden of proving her eligibility for public assistance was on Claimant. The Director, as the fact-finding agency, passes upon the credibility of witnesses and may, of course, decide a claim solely upon a finding of lack of credibility of un-contradicted and unimpeached testimony in support of the claim. Thornsberry, supra, 295 S.W.2d 1. c. 376 [5]; Ellis, supra.

The evidence is somewhat conflicting, but these facts are not in dispute: (1) on May 31, 1960, Claimant and her now deceased husband executed and delivered a deed to her Maryville home to her nephew, Everett Ditto, and his wife; (2) this deed was recorded April 4, 1966, between the first and second hearings before the Director; (3) the property conveyed by the deed is of the value of $2,500; and, (4)Claimant did not, on the date the deed was recorded, receive any consideration from the grantees. As to fact (4), Everett Ditto testified that on April 4, 1966, the date the deed was recorded, he did not pay or deliver any money or property to his aunt, the Claimant. We might well stop at this point and affirm the judgment, for the reason that, technically at least, when § 208.010, subd. 2(1) (a) is applied to these facts she obviously was not eligible for public assistance benefits. However, because of contentions of Claimant, we summarize other evidence bearing on whether Claimant received a “fair and valuable consideration” for the property.

Claimant contends that she received a fair and valuable consideration for the property, a consideration which would not affect her eligibility. Specifically, she says that prior to November 5, 1965, she was indebted to the Dittos for money advanced her by them to pay: (1) part of the purchase price of the Maryville home, with interest thereon from date of purchase; (2) for maintenance of the property; (3) real estate taxes; and (4) insurance premiums for insurance on the home. She further contends she gave the Dittos a note for $2,500 as evidence of her indebtedness to them for advancement of a part of the purchase price of the home; that the deed dated May 31, 1960, was delivered to them as security for that indebtedness and was in the nature of an equitable mortgage; that the Dittos foreclosed that mortgage April 4, 1966, by securing a decree of foreclosure in the circuit court of Nodaway county, by reason of which the transfer of the property was not her voluntary act but was involuntary.

Mr. and Mrs. Ditto testified that in 1958 or 1959, Mr. and Mrs. Wonder lived in Kansas City where they owned a home; that they expressed a desire to move to Maryville, and asked Mr. Ditto to purchase a home for them there with the understanding that when they sold the Kansas City property they would apply the proceeds toward reimbursing the Dittos; that they bought the Maryville home in 1959 for $5,000 and also bought furniture for it for about $1,500; that the Wonders moved into the Maryville home, and in 1960 sold the Kansas City property; that the Wonders used the proceeds ($3,500) to reimburse them. Mr. Ditto further testified that he and his wife conveyed the home to the Wonders; that nothing was mentioned about a “selling price” for the property; that the Wonders gave them a note for $2,500 and, at the same time, gave them a deed to the property as security for that and future advances and services. The note was not offered in evidence. In answer to a question propounded by Claimant’s counsel, Mr. Ditto said that the property “ * * * was not sold back to them [the Wonders] for $6000.00 * * [tjhey just got it for paying the $3500.00.” He further testified that after his aunt was removed from the assistance rolls he found himself in financial straits, needing money; that he filed a (friendly) suit against his aunt to recover the money he had in the property plus other money he had advanced for her benefit. A decree entered April 4, 1966, by the circuit court of Nodaway county was received in evidence ; this decree purported to divest Mrs. Wonder of title to the Maryville property and vest it in the Dittos, based on the deed from the Wonders to the Dittos; the decree also mentions credit extended by the Dittos to Mrs. Wonder totalling approximately $5,400 evidenced by a note and checks, but it does not describe the note by date or amount. As indicated, the May 31, 1960, deed from the Wonders to the Dittos was filed for record the same day this decree was entered.

There was also received in evidence by the Director two “Claimants’ Eligibility Statements” or applications for old age assistance filed with the County Welfare Office, one dated July, 1960, and the other April, 1962. The first was executed by Mr. and Mrs. Wonder; the second, filed after Mr. Wonder’s death, was executed by Mrs. Wonder; both applications represent that the property in question is owned by the applicant, that it has a value of $3,500 and is free of mortgages, and that the applicant has no legal debts. Neither application mentions the deed to the Dittos.

Claimant contends the Director was bound by this decree. We do not agree. While under the powers of a court of equity this deed might be decreed to be a mortgage given to secure a fair and valuable consideration (the amount advanced by the Dittos for purchase of the property, and possibly other advancements), the decision of the Director, and the reviewing courts, as to what is a fair and valuable consideration for the transfer of property by a public assistance claimant, and the date of such transfer, is governed, not by the general law, but by a special statute, § 208.010, supra. This section provides that “fair and valuable consideration” shall not be construed to include advancements made by a relative to a claimant; therefore, this transfer by Claimant to her nephew (for the consideration mentioned and by a deed dated May 31, 1960, but withheld from record until April 4, 1966 (the statutory date of transfer)) was not for a fair and valuable consideration, and the transfer rendered her ineligible for public assistance at that time.

Our examination of the record leads us to the conclusion that Claimant was accorded a fair hearing before the Director, and that his decision, and the judgment of the circuit court, is supported by substantial evidence.

Having determined that the evidence supports the Director’s finding and decision that Claimant did not receive a fair and valuable consideration for her transfer of this property, we need not determine whether there is substantial evidence to support his other finding that on the date she was removed from the rolls she had, within the meaning of § 208.010, subd. 2(6) and the Division’s Regulation No. 13, an available resource sufficient to meet her needs.

The judgment is affirmed.

All concur.

      . Rule and Regulation No. 13, received in evidence, provides, in part, that real property of the value of $750 or more owned by a public welfare assistance recipient which is not furnishing shelter for him shall be considered as a resource (within the meaning of § 208.010, subd. 2(6)) rendering a claimant ineligible for assistance, provided 24 months have elapsed since claimant occupied the property.

      . That subdivision of § 208.010, provides: “Benefits shall not be payable to any claimant who » ⅝ » has encumbered * * * or transferred real ⅜ ⅜ * property, of which he is the record * * * owner, * ⅜ * within five years preceding the date of the investigation without receiving fair and valuable consideration.” It further provides that the date of recording the instrument which encumbers or transfers property shall be considered the date the transfer occurred. And, it further provides : “ ‘Fair and valuable consideration’ ⅜ » » means money or ⅜ * * property received at the time of the transaction approximately equal to the value of the property encumbered * * * or transferred, and shall not * ⅜ % be construed to include support, services, or other advancements made or to be made by a relative to a claimant.”


source: Caselaw Access Project

author: BARRETT, Commissioner. PER CURIAM.

license: Public Domain

text:
    John CHANEY and Lucretta Chaney, Appellants, v. WABASH RAILROAD COMPANY, Respondent.
    No. 52431.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 8, 1968.
    Charles N. Bono, Smith, Schlozman & Shapiro, Robert G. Smith, Joseph R. Schlozman, Lee S. Shapiro, Kansas City, for appellants.
    James H. Ottman, John C. Dods, Kansas City, for defendant-appellant. Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
   BARRETT, Commissioner.

This action in two counts is to recover damages for the plaintiff husband’s personal injuries and the wife’s loss of “services, society, association and companionship.” The husband, John Chaney, was injured on December 7, 1962, when the 1961 Pontiac sedan he was driving on Highways 6 and 13 in Daviess County ran into an empty cattle car stopped on the highway crossing. A jury awarded the husband $75,000.00 damages and the wife $1000.00. In its alternative motion for judgment or for a new trial the Wabash Railroad set forth twenty-seven specifications of error together with numerous specific subdivisions of alleged error. The court instead of basing its ruling on the alternative motion made the order that “the motion of the defendant to set aside the verdict and the judgment entered thereon for the plaintiffs, and for judgment for the defendant in accordance with defendant’s motion for directed verdict, is granted on the grounds stated in Paragraphs 1, 2 and 3 of defendant’s motion for directed verdict at the close of all the evidence, and judgment for the defendant may be entered accordingly.” The court further ordered “in the event that judgment for the defendant to be entered herein is reversed, the alternative motion of the defendant for a new trial is denied.” The first three grounds of the motion for a directed verdict are that (1) “The evidence failed to establish a claim upon which relief can be granted against this defendant.” (2) “The evidence failed to establish that the defendant was negligent in any of the particulars alleged in Plaintiffs’ Second Amended Petition” and (3) “The evidence established that plaintiff John Chaney was guilty of contributory negligence as a matter of law.” Upon the entry of the noted order both the plaintiffs, Mr. and Mrs. Chaney, and the defendant, Wabash Railroad, filed notices of appeal and in their respective capacities the parties have filed five briefs in this court in which they raise numerous questions concerning the rejection and admissibility of testimony, excessiveness of the verdict and the correctness of instructions. Nevertheless, the parties appear to tacitly concede that the truly meritorious question is whether from the circumstances a jury could reasonably find that the railroad was negligent, particularly whether under all the proof it was a permissible inference that for any reason the railroad crossing was “particularly dangerous” (Coffman v. St. Louis-San Francisco Ry. Co., Mo., 378 S.W.2d 583, 586) as that term has been defined in numerous Missouri cases. Annotation 84 A.L.R.2d 813. And at the outset several cases cited by the parties must be put aside, for example: “Cases involving injury as the result of a collision between a road vehicle and a moving train have been excluded even where it appeared that the train was moving very slowly, since even slight movement is apt to call a motorist’s attention to the fact that the crossing is obstructed.” 84 A.L.R.2d 1.c. 819. In short, the case is to be strictly confined to the situation presented, railroad cars standing on a highway crossing collided with by an automobile.

The plaintiff, John Chaney, age 41, lives in Overland Park, Kansas, southwest of Kansas City, Missouri. On December 7, 1962, Chaney’s sister-in-law called from the Kansas City Airport at 1 a. m., and being unable to rent an automobile, asked him to drive her to her father-in-law’s home three miles east of Jamesport, Missouri. Chaney drove to Kansas City, picked up his sister-in-law and drove up Highway 69 to Cameron to an intersection with Highway 6 and then to Gallatin and to Jamesport. He stopped at their destination long enough for a cup of coffee and was on the return trip over the same route home at 5 a. m., and approached the intersection of Highways 6 and 13 two or three miles east of Gallatin at a speed of 50 to 55 miles an hour. While Chaney says that he had not previously been over this particular highway at night, other than on the trip to Jamesport four hours earlier, he had traveled over this route in the daylight hours two to four times a year over a period of twenty years and knew that there were railroad tracks across the highway in the vicinity of Gal-latin but he “thought that was a siding for this grain elevator.”’ He said, “I wasn’t familiar with the crossing. I was just familiar with the general vicinity.” It was cloudy and dark hut there was no moisture and at one point in his testimony Chaney said that there was nothing to distract his attention and there was no other motor vehicular traffic in either direction. While the degree is not given Highways 6 and 13 approach the railroad tracks on a long arc and 500 feet east of the crossing there is a bridge and beyond the bridge, 300 feet from the crossing, there is a reflectorized State Highway Department sign noting approach to a railroad crossing. Admittedly there were no railroad signs or signals other than the usual wooden crossbucks and the one facing Chaney was not reflec-torized. And while the Wabash Railroad’s mixed train (the fifth car from the engine was a coach thought to be lighted) had occupied the crossing for several minutes no members of the train crew had been assigned the duty of looking out for or “flagging” traffic and no member of the train crew was at or on the crossing. Chaney says that with his lights on “high beam” he saw the bridge and after crossing it saw “several signs,” some “reflective,” but he did not “recall” seeing any sign warning of a railroad crossing and he did not see the train on the crossing, particularly the tenth car in the consist, an empty stock car directly across the highway. He says that the first and only thing he saw, aside from the bridge and signs, “was the wheels of the train.” When he saw the wheels of the boxcar, 180 to 200 feet from the crossing and traveling at a speed of 50 to 55 miles an hour he immediately applied his brakes but nevertheless “slid down the highway into the train.” In this connection he says that “it takes a little time” and that by the time the brakes took effect he was a little less than 180 feet from the train. It was his opinion that under the existing conditions he could have stopped his Pontiac (in excellent mechanical condition) in “a little over 200 feet” and he had no judgment of its speed at the moment of impact. He testified that his automobile left skid marks on the pavement for a distance of 151 feet. He said that fifty feet after his automobile crossed the bridge there was nothing to prevent his seeing the train other than “the curve of the road” and because of that “you can’t possibly see it.”

Highways 6 and 13 approach Gallatin on a wide arc from the northeast to the southwest and finally almost directly south. The main line of the Wabash, and this was the main line, crosses this section of Daviess County and the Gallatin area from northwest to southeast intersecting and crossing Highway 6-13 on a wide angle, obliquely, perhaps at an obtuse angle. In approaching the crossing Chaney was traveling in a westerly direction. While he said that the railroad crossing could not be seen by-reason of the curve in the highway, he in fact saw the wheels of the boxcar while 180 feet distant and his witness who photographed and measured the distances said that after leaving the bridge there was “260‘ feet of straightaway” approaching the crossing. Photographs introduced by both parties, taken east of the highway department’s advance warning sign (300 feet east of the crossing), reveal that the highway in this span is slightly upgrade but in almost a straight line. One of the plaintiff’s witnesses — the railroad offered no evidence other than parts of the plaintiff’s-deposition — said that he had personally examined 300 of the “nine hundred or so” railroad crossings in Missouri. This witness, a highway department employee with the title of “Assistant Utilities Engineer,” took one of the photographs from just east of the advance warning sign and this photograph indisputably reveals, as the witness testified, that “the highway is level for some distance in both directions from the crossing — relative, not considering a foot or so variation, but generally level.” He testified that the railroad crossing “was plainly visible from the location of the advance warning signs” (300 feet).

The plaintiffs list sixteen “conditions” or “summary of facts” which they say constitutes sufficient and substantial evidence of “an unusually dangerous or extraordinarily hazardous railroad crossing.” For example, they point to the evidence which shows that there were trees on the right side of the highway and brush and weeds along the right-of-way east of and up to the crossing. They list as facts supporting the issue that the crossing is 1 -¾ miles east of Gallatin, that the speed limit is 65 miles an hour and that Highway 6 at this point is heavily traveled. They say that beginning 500 feet east of the crossing the highway “runs downhill” to a point 100 feet east of the crossing and then begins “to level out and assume a very slight upgrade to the point of the crossing.” In the circumstances of some cases these particular facts or conditions, singly or in combination, would be of persuasive force upon the issue of an unusually dangerous crossing. But in all instances the issue of hazardous crossing must of necessity be determined in the context of the particular occurrence, here a train of cars stationary on the crossing and it is not as if the train from the south was approaching the crossing and the motorist’s view of the train and tracks was obscured by weeds and brush. Homan v. Missouri Pacific R. Co., 334 Mo. 61, 64 S.W.2d 617. The mere downward slope of the highway, the dark color of the surface of the roadway over the crossing, here blacktop, and the drab color of the boxcar are not in themselves such circumstances as to render an occupied crossing unusually hazardous within the meaning of the rule relied upon as creating liability. State ex rel. Thompson v. Cave, 358 Mo. 414, 215 S.W.2d 435; Albertson v. Wabash R. Co., 363 Mo. 696, 253 S.W.2d 184, 187. When the particular circumstances create “an illusion of safety” to the motorist, as in Albertson v. Wabash R. Co., supra, an unusually hazardous crossing is a permissible finding and of course there is liability. On the other hand, “illusion of safety” is not a term of art as the railroad implies, the question is whether “for any reason” the railroad crossing is particularly dangerous. Coffman v. St. Louis-San Francisco R. Co., supra. The determinative factors are cogently set forth in that case and need not be repeated here, it is sufficient to say that in that case the physical construction of the railroad track and the physical conditions generally were of great significance. In this case Mr. Chaney did not rely on any illusion of safety in the physical surroundings, nor did atmospheric conditions or other traffic (Allinson v. Missouri-Kansas-Texas R. Co., Mo.App., 347 S.W.2d 902) enter into his difficulties, he simply did not see the train on the crossing until he was but 180 feet away; “if the evidence shows that the train could have been seen in time by a traveler exercising due care and caution under the circumstances, then the mere fact that a particular traveler did not himself see it is, as defendant contends, on evidence of actionable negligence on the part of the railroad company in failing to have given warning of its presence on the crossing.” Rowe v. Henwood, Mo.App., 207 S.W.2d 829, 833.

This is not to say that the facts or factors listed here by the plaintiffs are not present and are not relevant and as was said in the Coffman case, 378 S.W.2d 1.c. 592, “it would be erroneous for us, in reviewing the question of the submissibility of plaintiff’s case against the railroad company, to become decisively preoccupied with particular sight distances from particular points of view of the driver of the automobile as the northbound vehicle approached the crossing.” It is to say, however, that in the circumstances relied on by Mr. Chaney this particular crossing was not so unusually dangerous that the railroad should have anticipated “that the mere presence of the train standing thereon will not adequately warn users of the highway.” 84 A.L.R.2d 1.c. 855. While in no event would the plaintiffs be conclusively bound by the testimony of their highway department witness his evidence illustrates precisely the issue involved here and the weakness of the plaintiffs’ proof and reliance. He said that the highway over this crossing was “a little bit narrow” but “We would classify it as a satisfactory crossing. * * you could see the crossing adequately from either direction from a distance beyond our advance warning sign. * * * I think there was adequate stopping sight distance. In other words, if a driver comes from the east, going from the east to the west, if there was any obstruction at the crossing, that there was adequate sight distance for him to stop. * * * I think sight distance, day or night, bears no particular relationship to sight distance. * * * We make no distinction between day and night.” In short, while there may be danger in all railroad tracks crossing public highways, the essence of the proof and reliance here is upon a common conventional railroad-highway crossing, one of several hundred, and the circumstances adduced do not meet the test of a “particularly dangerous” crossing as demonstrated by the Coffman and Albertson cases and the consequence is that the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.

PER CURIAM.

On motion for rehearing appellants Chaney state that the court’s opinion did not expressly rule on the admissibility of certain evidence excluded by the trial court. Even considering that testimony, the admissibility of which we need not rule, the appellants Chaney did not make a submissible case and their motion for a rehearing or, in the alternative, to transfer to the court en banc is overruled.


author: MAUGHMER, Commissioner.

text:
    Bobbie G. SCOTT (Alleged Employee), Appellant, v. MORRISON TRUCK & TRACTOR COMPANY (Alleged Employer), and Hardware Mutual Casualty Company (Alleged Insurer), Respondents.
    No. 24702.
    Kansas City Court of Appeals. Missouri.
    Dec. 4 1967.

      Robert J. Sanders, Edgar S. Carroll, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for appellant.
    R. Robert Cohn, James F. Stigall, Kansas, City, for respondents.
   MAUGHMER, Commissioner.

Workmen’s Compensation. While applying cement coating to the outside of a building rented by defendant corporation, claimant was struck in the left eye by a flying nail or piece thereof. As a result the eye was removed and he claimed recurrence of a prior condition of epilepsy. The amount of benefits sought does not affirmatively appear to be in excess of $15,-000 and jurisdiction rests with this court. The only issue is whether or not claimant at the time of the injury was an employee, actual or statutory, of the defendant. The referee and the commission found that he was not and entered an award denying compensation. The circuit court affirmed and plaintiff has appealed.

The injury occurred on May 9, 1963. Defendant, Morrison Truck & Tractor Company, is a corporation doing business at Odessa, Missouri. It had rented the building where the injury occurred and occupied it as the base for its truck and tractor operation. The building was owned by Mr. C. C. Morrison, who was president of the defendant company. In lieu of cash rent, defendant corporation agreed to pay all expenses incurred in the maintenance of the building, including repairs, taxes and insurance.

In the spring of 1963, Mr. Morrison, acting for the defendant corporation, entered into a contract with Mr. Ed Alum-baugh, d/b/a Better Homes Service, Odessa, Missouri, providing for resurfacing the outside walls of the building with concrete. Mr. Alumbaugh at all times herein mentioned was a full time employee of the Fisher Body Plant of General Motors, at Kansas City, worked on a shift from 4:00 p. m. until 12:00 a. m., and usually 44 hours per week. He described his home service jobs as “moonlighting”. We quote pertinent parts of this particular repair agreement:

“In Account With Better Home Service ED ALUMBAUGH
“Electrical Wiring-Painting-Tiling
“I The under signed agrees to do the following work for said price of $648.00 on Morrison Truck & Tractor building.
1. Seal & repair holes with cement.
2. 1700 ? Ft of Metal lathing
3. 1700 ? Ft white cement
4. Seal complete building
5. Trim & paint.
/s/ Edwin D. Alumbaugh”.

Both claimant and Mr. Alumbaugh testified that claimant was employed and paid by Mr. Alumbaugh. The only direction mentioned by either as given by Mr. Morrison, was that the concrete, as first applied did not adhere and would have to be removed. Then Alumbaugh applied metal lath and applied the coating while it was moist. The plaintiff testified that his negotiations for employment on this job were with Mr. Alumbaugh, who told him when to work, when to report for work, fixed his wages at $1.50 per hour, and paid him for his work. Mr. Alumbaugh testified that he hired plaintiff, said he could have hired any one he chose and Mr. Morrison did not have anything to do with hiring help. Plaintiff worked on May 8 and May 9 up until the time when he was injured.

Mr. C. C. Morrison testified that he employed no one but Alumbaugh to make the repairs; that he watched the progress of the work and advised Mr. Alumbaugh when he thought changes should be made.

The scope of appellate review in a workmen’s compensation appeal is well stated in Long v. Mississippi Lime Co. of Missouri, Mo.App., 257 S.W.2d 167, 170. We quote from that opinion:

“An appellate court, in reviewing the evidence upon the basis of which the industrial commission made its award, must view the evidence in the light most favorable to the successful party below. Harper v. Home Imp. Co., Mo.Sup., 235 S.W.2d 558. Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the commission. Both courts are authorized and bound to decide whether the commission reasonably could have made its findings and reached its result upon consideration of all of the evidence before it, i. e. whether the award made by the commission is supported by competent and substantial evidence upon the whole record, Constitution of 1945, Art. V, sec. 22, V.A.M.S. * * * and cases cited, and to set aside decisions clearly contrary to the overwhelming weight of the evidence”. See also Liverman v. Wagner, Mo.App., 384 S.W.2d 107.

Plaintiff says first the evidence shows he was an actual employee of defendant and cites Montgomery v. Mine La Motte Corp., Mo.Sup., 304 S.W.2d 885, as so holding under similar facts. In that case the work done by the claimed independent contractor was the moving of ore by trucks. This was the principal business of defendant company. The Supreme Court held that the claimant was either an actual employee because the employer had reserved control of the work or he was a statutory employee because the work was being done under contract on employer’s premises and in the usual course of its business. The court ruled there was liability under either conclusion.

In the instant case the evidence is ample, substantial and we believe overwhelming that claimant was employed by, paid by and his activities were directed by Mr. Ed Alumbaugh and not by the defendant. He was not an actual employee of Morrison.

Plaintiff also contends that he is covered as a statutory employee. Section 287.040(1) provides as follows:

“Any- person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business”.

Subsection (3) of this statute also provides in part:

“3. The provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished, altered or repaired by an independent contractor * * * ”.

It is evident that Mr. Alumbaugh was an independent contractor, Lawrence v. William Gebhardt, Jr., & Son et al., Mo.App., 311 S.W.2d 97, although in some instances even the actual employee of an independent contractor is also covered as a statutory employee. This court in Shireman v. Rainen Home Furnishers, Inc., Mo.App., 402 S.W.2d 64, at page 68, listed the essential requirements for a statutory employee-employer relationship to come into being:

“Under this statute our courts have repeatedly held that three elements must be present before one can be held to be a statutory employee. The evidence must show (1) that the work was performed under a contract, (2) that the injury occurred on or about the premises of the employer, and (3) that the injury must have occurred while the employee was doing work in the usual course of employer’s business”.

Does the evidence adduced here add up to compliance with all three requirements?

1. It is clear that the work (recovering the outside of the building) was being done under contract.

2. It seems also evident that the injury occurred “on or about” the premises of the Morrison Company, the alleged employer. In State ex rel. Potashnick et al. v. Fulbright et al., 350 Mo. 858, 169 S.W.2d 59, 61, the court construed the word “prem-mises” as used in the statute as follows: “ * * * ‘that “premises” as there used contemplates any place, under the exclusive control of the employer , where the employer’s usual business is being carried on or conducted, * * * ’ ”.

3. Did the injury occur while the employee was doing work in the usual course of employer’s business? We think not. Defendant’s operation was a truck and tractor business. The resurfacing of the outside walls of the rented building housing their enterprise can hardly be said to be in the usual course of that business. It was an isolated, uncommon, unusual event and not a part of the company’s regular activities. In Montgomery v. Mine La Motte Corp., supra, cited by appellant, the work was transporting ore, which was the company’s regular and main business. In Baker v. Iowa-Missouri Walnut Log Co., Mo.App., 270 S.W.2d 73, the work was transporting walnut logs, from timber land owned or leased by the employer, to its processing plant. Again the work was that which was in the usual course of the employer’s business.

In our opinion there was no substantial evidence produced which would justify a conclusion that claimant was either an actual or a statutory employee of the Morrison Truck & Tractor Company. We believe the award of the referee and the award of the commission so holding are supported by competent and substantial evidence and are not contrary to the overwhelming weight of the evidence.

Therefore the judgment of the circuit court affirming the award of the commission denying compensation is by this court affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

HOWARD, P. J., and CROSS, J., concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


author: SPERRY, Commissioner.

text:
    Burnis E. MOORE, Plaintiff-Appellant, v. M. F. A. MUTUAL INSURANCE CO., Defendant-Respondent.
    No. 24717.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.

      Robert B. Paden, Maysville, for appellant.
    Strop, Watkins, Roberts & Hale, St. Joseph, for respondent.
   SPERRY, Commissioner.

Defendant had issued to plaintiff its “Farm Comprehensive Liability Insurance Policy” insuring plaintiff’s liability growing out of his activities in connection with the operation of his farm. While operating a self propelled combine along a public road in DeKalb County, Missouri, it was damaged in a collision with a railroad train. The combine was owned by a Mr. McMil-lin, whose insurance company settled with him for damages to the combine and sued plaintiff for reimbursement under subrogation clauses of its insurance contract. Mr. Moore notified defendant herein and requested that it defend the action, which it failed and refused to do. Mr. Moore employed lawyers and successfully defended the action. In this suit he seeks to recover against M.F.A. the sum of $1,250.00, as and for attorney fees for which he became liable in the former suit, and for penalties. From an adverse summary judgment plaintiff appeals.

The policy mentioned above is numbered 5-32391. Under the section denominated “coverage B” the limit of liability is $5000.00. Under “Exclusions”, it .is provided that this policy does not apply:

■“ * * *
■“(h) under Coverage B to injury to or destruction of property used by, rented to, or in the care, custody, or control of the insured or any other person regularly residing on the premises”. (Emphasis ours.)

Plaintiff pleaded that the property involved here was a combine owned by Charles S. McMillin which plaintiff was operating. Since plaintiff was operating the combine on a public highway it was in his care, custody, and control.

This is not a collision policy. It is a liability policy. Defendant’s risk would be much greater if the above mentioned clause should be eliminated by construction. In that event one who had custody or control of a machine might not be as careful to avoid damage to it if he knew that insurance would cover the loss. However that may be, the clause is in the policy and it must be enforced. Northwestern Mutual Insurance Company v. Haglund, Mo.App., 387 S.W.2d 230.

Northwestern Mutual Insurance Company v. Haglund, supra, is a case where Northwestern had issued its automobile collision insurance policy to its insured, Was-son. While this vehicle was being operated by Haglund, with Wasson’s consent, it was damaged. Wasson’s insurer paid his loss and sued Haglund. Haglund was the owner of a policy issued to him by Lumbermen’s Mutual Casualty Company, in which Lumbermen’s agreed to pay on behalf of the insured (Haglund) all sums which the insured might become legally obligated to pay as damages because of “ * * * injury to or destruction of property, including loss of use thereof, hereinafter called ‘property damage’; arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile, and the company shall defend any suit alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; * * * Exclusion I of the policy provides that it does not apply “to injury to or destruction of (1) property owned or transported by the insured or (2) property rented to or in charge of the insured other than a residence or private garage”. (See 387 S.W.2d 230, 1. c. 232.) Haglund sued Lumbermen’s as third party defendant seeking judgment for any sums which Northwestern might obtain against him, and for damages because of Lumbermen’s refusal to defend the suit against Haglund.

Northwestern obtained a judgment in the circuit court against Haglund for $858.50, for damages to the Wasson automobile, and Haglund obtained judgment against Lumbermen’s for that amount, plus damages because of Lumbermen’s refusal to defend him. We held that Lumbermen’s was not liable to pay the judgment against Haglund for the damages nor was it required to defend the suit against him. We reversed the judgment accordingly.

Our decision was based on the provisions of the exclusion clause in Haglund’s policy, which we mentioned, supra. In legal effect, that clause is identical with the exclusion clause relied on by defendant insurance company in the case at bar. We adhere to our interpretation of it in the Haglund case and, consequently, hold that plaintiff, in this case, may not recover under the provisions of farm liability policy No. 5-32391. In the Haglund case we reviewed the authorities thoroughly and we do not believe it necessary to again review them.

Plaintiff also contends that his liability in this case is covered by two other policies issued by defendant to him. These policies are numbered, respectively, 24 — 1-67576 and 24-1-407711-002. Both are denominated automobile insurance policies. The first above numbered policy contains an exclusion clause very similar in wording, and identical in legal effect, to that contained in the farm liability policy here involved. It does not cover defendant’s liability in this case.

The second of these automobile policies contains an exclusion clause providing that coverages therein mentioned do not apply to “bodily injury or injury to or destruction of property arising out of the operation of farm machinery”. Since the damages involved in the case at bar arose out of the operation of a farm combine defendant was not obligated to pay the damages nor to defend plaintiff when sued therefor.

The court properly rendered summary judgment for defendant. Considering the pleadings, including the admissions and allegations contained therein, and the provisions of the policies, which were filed by stipulation of the parties, there was no genuine issue as to any material fact and defendant was entitled to a judgment as a matter of law. Rule 74.04(c).

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

HOWARD, P. J., and CROSS, J., concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


text:
    George W. GOLL, Sr., and John P. Goll, Jr., Plaintiffs-Respondents, v. Denzil KAHLER and Rodney Kahler, Defendants-Appellants.
    No. 24737.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.

      James J. Wheeler, Keytesville, for appellants.
    Jack Lukehart, Brunswick, for respondents.
   JAMES W. BROADDUS, Special Commissioner.

This is an appeal by defendants from an order of the Circuit Court of Chariton County overruling their motion to revoke an order appointing a receiver.

On November 11, 1966, plaintiffs (Respondents here) filed a petition for injunction praying the court to enter its order restraining the defendants from violating an agreement concerning the division of the crop on the land described in said petition. ’

On November 15, 1966, plaintiffs filed a motion for the appointment of a receiver. The transcript recites that said motion was “presented with attorneys for all parties present and heard. Motion for appointment of receiver sustained and C. S. Bittiker appointed receiver to harvest crop on lands described and preserve same. Bond of receiver fixed at $5000.” On November 22, 1966, said “Receiver’s Bond was filed and approved.”

In their motion plaintiffs allege that they own, or are authorized to act as agents, concerning the care and management of certain land in Chariton County (describing said land.)

Plaintiffs further allege that defendant Denzil Kahler is a tenant of the tillable portion of said real-estate under an agreement which provided that seed and fertilizer used on the tillable portion of the real-estate would be paid for on a 50-50 basis; that the corn raised on the tillable portion of said real-estate would be divided on a 50-50 basis; that plaintiffs would have the right of entry onto the tillable portion of said ground to harvest their share of the crop; that said crop would be harvested on the basis that Denzil Kahler would pick four rows of corn and leave four rows for plaintiffs, thus alternating throughout the field.

It is further alleged that defendants have refused to allow plaintiffs on the land for the purpose of picking their corn, as the agreement provided; that defendants have stated that they will not allow plaintiffs on the land to pick the corn; that they will pick the entire crop, and that plaintiffs will pay them for so doing; that defendant Denzil Kahler has stated that plaintiffs have refused to pay bills incurred against them and that he, the said Denzil Kahler, will take quantities of plaintiffs’ corn to pay said alleged bills, although defendant Den-zil Kahler has no interest in the payment of said bills and, in fact, the plaintiffs owe no bills for which defendant Denzil Kahler would be responsible for in any manner; that defendant Denzil Kahler has, the plaintiffs believe, already picked one-half or more of said crop, and still the said defendants will not allow plaintiffs on the land to pick their share of the crop.

It is further alleged that unless plaintiffs are allowed on said real-estate to pick their corn, they would receive irreparable damage by not being allowed to pick said corn until the termination of the oral lease above referred to; that defendants are unsettled in their financial affairs and have numerous creditors.

It is also alleged that defendants have picked a large portion of the corn, and plaintiffs do not know where said corn is, ' so that it can be determined how much corn has been picked and if defendants have picked more than their share of the crop; that plaintiffs believe that their share of the crop has been or will be mis-apprcpriated, and that this will continue unless a receiver is appointed; that a receiver should be appointed to prevent loss, waste, destruction, irreparable injury and the defeat of plaintiffs’ rights; that plaintiffs have no adequate remedy at law.

On December 6, 1966, defendants filed their motion to revoke the order appointing the receiver and the motion was heard on December 8. At that hearing the evidence was that plaintiff George W. Goll, Sr., and his wife own an undivided one-half interest in the land involved, and John P. Goll, Sr., and his wife own the other one-half interest. John P. Goll, Jr., acted as agent for his father and mother, Mr. and Mrs. John P. Goll, Sr., in the management of the farm. John P. Goll, Sr., has been an invalid for seven years.

George W. Goll, Sr., testified that since 1959, he had been “primarily responsible for the management” of the land and that Denzil Kahler had been the tenant. Den-zil and his son, Rodney Kahler, farmed the land together, and Denzil claimed that Rodney was also a tenant, although this was denied by Goll.

Denzil Kahler testified that there was “nothing definite” about the crop arrangements for the year 1966. In prior years he received two-thirds of the crop and the Golls one-third. He paid two-thirds of the cost of the fertilizer and the Golls one-third. During those prior years Denzil stated that he paid for all the seed corn-He testified that he was claiming two-thirds of the crop for 1966; that two loads of grain were placed in an elevator in the name of Kahler and Goll and that he (Kahler) collected for one-half of each of these loads. Denzil Kahler further testified that when he purchased seed corn and fertilizer for the year 1966, he had one-half of the cost thereof billed to the Golls.

At the hearing defendants asserted that they had picked only one-half of the corn on the farm. '

Plaintiff, George W. Goll, Sr., testified that during the fall of 1965, he discussed with Denzil Kahler the fact that we (the Golls) “would like to enter into an agreement 50-50 and pay half the cost and he said it would be perfectly all right with him.” Mr. Goll further testified that he received bills for fifty percent of the expenses; that some of these bills “seemed unusually large;” that in September 1966, “he discussed these bills” with Denzil Kahler and the latter said: “That’s what it amounts to and that’s what I used and you’ve got 200 acres or better, down there of tillable land and we had it all in, and I said ‘Kahler, I hope we have got it but in my years of fooling with it, I’ve never known it to be 200 acres of tillable land as yet down there because it’s not all cleared up.’ He said: ‘Well, it’s there’, and I said: ‘Well, how can we find out about it?’ And he said, Well, why don’t you have the ASC office check it.’ ” According to the ASC survey there were 165 and some tenths acres of tillable land on the farm. Mr. George W. Goll, Sr., further stated that after receiving this information he went to see Kahler and said: “ ‘Denzil I’m back down here, I’ve been to the ASC office and want to tell you what I found out and see if we can’t get together on these bills.’ He said: T don’t give a damn what the ASC office said,’ he said, ‘I’ve farmed that land long enough to know more about it than anybody,’ so he said: T don’t want to even hear about it.’ ‘Another thing,’ he said, ‘I’m going to go back to this 50-50 contract, go back to two-thirds and one-third unless you right now give me a two-year contract, O.K. it on my terms for the rental of the land again.’ ” And, “he said, if I didn’t do certain things that he was going to take more of the corn. I think he even worded it, ‘I’m going to steal enough to pay for it’ the very statement that he made,” that “because of the disagreement and the fact that he made this statement of what he was going to do I took it up with Mr. Lukehart (plaintiffs’ attorney) and he called the meeting with the two Kahlers, myself, and young Goll”; that at this meeting it was agreed that the Kahlers would pick four rows of corn “and leave four and continue across the field in that manner, that each man would get the short rows or long rows just as they came and nobody would get much advantage.”

The farm involved was described as low ground, subject to overflow, tends to get pretty wet, receives flood damage about three years out of five. Mr. Goll was asked: “Now, you stated your background concerning this land, based upon your background and experience with this land is it your opinion that unless this corn is gathered it would stand to be lost? Well, yes there will be considerable damage or loss. Of course, that is contingent on the type of weather we have.”

The evidence disclosed that plaintiffs were denied access to the land to harvest any part of the crop, and the land was posted by defendants against trespassing some two weeks before the hearing.

There are many cases in the State holding that the power to appoint a receiver rests within the sound discretion of the trial court. Stark v. Grimes, 88 Mo.App. 409; Abramsky v. Abramsky, 261 Mo. 117, 168 S.W. 1178; State ex rel. Mueller v. Wurdeman, Mo.Sup., 232 S.W. 1002; State ex rel. Hampe v. Ittner, 304 Mo. 135, 263 S.W. 158; Purvis v. Hardin, 343 Mo. 652, 122 S.W.2d 936. As stated in the Abramsky case, supra: “The power of a court of general jurisdiction, as is a circuit court, to appoint receivers is vested by our statute (now Sect. 515.240, V.A.M.S. 1959) in the sound discretion of such courts. For the statute says:

“ ‘The court or any judge thereof in vacation, shall have power to appoint a receiver, whenever such appointment shall be deemed necessary * *
“If the statutory words ‘whenever such appointment shall be deemed necessary/ do not vest in a circuit judge a discretion (Stark v. Grimes, 88 Mo.App. 409, Cantwell v. Columbia Lead Co., 199 Mo. 1, 97 S.W. 167), in such behalf so broad as only to be a matter of review by us in case of palpable abuse, we fail to read it correctly.” (Emphasis ours.)

In support of their contention that the court erred in overruling their motion defendants cite cases holding that facts must be pleaded and proven that plaintiffs have some right, title or interest in or lien on the property sought to be subjected to receivership. They then assert: “Plaintiffs failed to prove any agreement by defendants that defendants would leave part of the corn in the field. The petition alleges this a part of the lease agreement. The proof shows nothing but a discussion, really an argument, between the parties in September, without consideration, without being in writing, and with no possible meeting of the minds.” In our opinion the evidence did establish such an agreement. The admitted fact that defendants sent bills to plaintiffs for one-half of the cost of the seed corn and fertilizer for the year 1966, is a tacit admission that the crop for that year would be divided on a 50-50 basis. The agreement was not without consideration (Feinberg v. Pfeiffer Co., Mo.App., 322 S.W.2d 163, 167) and, under the statute (Sect. 432.010, V.A.M.S. 1959) it did not have to be in writing.

In support of their argument that plaintiffs had an adequate remedy at law defendants cite the case of Hill v. Brothers, Mo.App., 217 S.W. 581. On its facts that case is clearly distinguishable from the instant case. There the plaintiff was a tenant on a farm owned by one Disher. Disher entered into a contract to sell the farm to defendant on October 15, 1917, at which time the plaintiff had 40 acres of land prepared for sowing wheat. Disher agreed to give possession of the farm to defendant on or before March 1, 1918. The plaintiff went ahead and seeded the 40 acres in wheat. The plaintiff gave up possession of the farm in January, 1918, and the defendant went into possession in February. A temporary injunction restraining the defendant from interfering with the plaintiff in entering and harvesting one-half of the crop was issued on June 1, 1918. A motion to dissolve the injunction was filed on December 2, 1918, and was taken up by the court on April 15, 1919, at which time the temporary injunction was dissolved and the petition dismissed. The opinion pointed out that it was perfectly apparent that at the time the lower court sustained the motion to dissolve “the wheat had been cut and threshed for nearly a year.” In affirming the lower court’s judgment dissolving the temporary injunction the opinion stated that the evidence showed the “defendant was entirely solvent” and able to pay any damage to which the plaintiff might have been entitled. In the instant case the petition alleged that defendant Denzil Kah-ler was “not financially responsible.” From the admissions made by him on cross-examination the inference can easily be drawn that that allegation was true.

Defendants also contend that the court erred in overruling their motion to revoke the order appointing a receiver “when the evidence established that there were persons who were interested in the subject matter of the litigation who were not parties to the action.”

As we have stated John P. Goll, Sr., and his wife owned an undivided one-half interest in the land involved. They were not named as plaintiffs in the injunction suit. Neither was the wife of George W. Goll, Sr.

Appointment of a receiver is no part of the cause of action. It is merely incidental thereto. Simplex Paper Corp. v. Standard Corrugated Box Co., 231 Mo.App. 764, 97 S.W.2d 862. The rights of the defendants would not be prejudiced by the addition of parties plaintiff during the proceedings in the main case, which in this instance is the injunction suit.

Sect. 507.030 V.A.M.S. 1959, provides that when a complete determination of a controversy cannot be had without the presence of other parties, the court may order them to be brought in by amendment of the petition. And the case of Webster et al. v. Joplin Water Works Co., 352 Mo. 327, 177 S.W.2d 447, holds that one having a joint interest may be added as a party plaintiff and the joinder will relate back to the original institution of the action.

In the case of McDonnell et al. v. Cornelison, Mo.App., 25 S.W.2d 558, plaintiff McDonnell sought to recover on a verbal contract for the rental of a farm. The suit arose in the justice court. During the progress of the trial in the circuit court it developed that plaintiff was not the sole owner of the premises but that A. G. Spencer and Emmett McDonnell were joint owners with him. The trial court permitted the petition to be amended by adding the additional parties, which this court held was proper. Defendants’ contention lacks merit.

From the facts in the instant case we believe that the trial court did not abuse its discretion and properly overruled the motion to revoke the order appointing the receiver. The judgment should be affirmed. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court and the judgment is affirmed.

HOWARD, P. J., CROSS, J., and CAVE, Special Judge, concur.

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


author: CHARLES SHANGLER, Special Judge.

text:
    Ronald G. VAN BRUNT, Pro Ami, Appellant, v. Waldemer W. MEYER, Respondent.
    No. 24758.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.

      Galen Knowlton, Michael J. Drape, Knowlton & Drape, Kansas City, for appellant.
    A. Warren Francis, Lloyd A. Hamrick, Roger J. Staab, Kansas City, for respondent.
   CHARLES SHANGLER, Special Judge.

Plaintiff, Ronald Van Brunt, 13 years of age at the time of the alleged occurrence, brought suit for damages against defendant Waldemer W. Meyer for personal injuries allegedly suffered by plaintiff consequent upon a collision between the bicycle which plaintiff was operating and defendant’s 1957 Cadillac. Defendant had judgment upon the trial; plaintiff’s motion for new trial having been overruled, he brings this appeal.

Somewhat before 8:00 A.M., September 18, 1963, a cool, pleasant and dry day, the minor plaintiff was operating his bicycle, north on Ward Parkway Plaza. The bicycle was equipped with raised handle bars and foot-operated coaster brakes, but had no horn or rear vision mirror. Ronald was then a student, enrolled in the 8th grade of Bingham Junior High School. On that morning, as was his custom, he was bound for the home of Charles Schliebs, his schoolmate who lived at 8210 Ward Parkway Plaza. From there, they customarily rode to school together.

Ward Parkway Plaza is a two-lane, north-south street in Kansas City, Missouri, one lane each for use of north and southbound traffic. It is 19 feet wide and the east and west edges are raised or “lipped” so that no shoulder exists on either side, and slopes gently to the north. The Schliebs’ residence is located on the west side of the street and is separated from it by a lawn. Its doorway is located on the south end, facing east. As best as we are able to determine, about 12 feet north from this doorway is located the driveway into the home, into which plaintiff customarily turned.

The collision occurred when the plaintiff turned from the east or northbound lane into the west or southbound lane of Ward Parkway Plaza while the defendant’s car occupying the southbound lane was in the process of passing plaintiff. Although there appears, by the record, to have been abundant opportunity to have established the place and point of impact with some definiteness, we are required to speculate concerning it. The collision appears to have occurred in the west or southbound lane. Plaintiff, particularly, made repeated use of his Exhibits 1 and 2, photographs of the scene taken by Corporal Ralph Anthony. The reported colloquy, however, is more pantomimic than verbally articulated, consisting of gestures rather than precise meanings. We shall have cause to refer to this again in the course of this opinion.

At the trial, plaintiff had no recollection of the accident or of the conditions that existed that day. He did not even recall riding the bicycle that day; his first recollection after the accident was that of lying on a chaise longue on the Schliebs’ porch. There was evidence he had suffered a head injury resulting in loss of memory. The front axle, front fork and saddlebags of the bicycle were bent by the collision. The damage to defendant’s Cadillac was to the side of the right front fender, near its front. Charles Schliebs, plaintiff’s witness and schoolmate, testified as follows: He was standing on the lawn of his home, 15-20 feet west of the street, waiting for plaintiff’s arrival. He looked up the street, south, and saw plaintiff coming on his bicycle, 8 or 10 houses away; as Ronald came down the slope in the northbound lane, he “came down at a fairly good speed for a bicycle and slowed down as he normally did.” Charles’ mother called to him, he turned in towards the house to get his books, and as he did so he heard a screech of tires, turned around and plaintiff was in the air, and defendant’s car skidded to a halt. He did not witness the actual impact.

Elsie Schliebs, mother of Charles, testified for the plaintiff as follows: She was standing in her doorway when the accident occurred. She first saw plaintiff when he was even with her door, 9-12 feet from her driveway to the north; he was then in the northbound lane of the street. She turned around to call her son, heard a squealing noise, and saw the front end of the right side of defendant’s car strike plaintiff just “as he turned in the driveway”. The impact occurred in the west lane. She didn’t know the speed of defendant’s car but “he wasn’t going slow”. She did not recall a horn being sounded before the accident.

Corporal Ralph Anthony, Kansas City, Missouri Police Department, investigated the accident and took two photographs, received in evidence as plaintiff’s Exhibits 1 and 2. He found 84 feet of over-all skid-marks from the end of defendant’s Cadillac, all in the west half of the street, angling to the left and running two feet east of the west curbline. The left side of the Cadillac was over the curb on some gravel. There was no physical evidence which indicated to him where the point of impact was. The speed limit in that area was 30 M.P.H. Plaintiff could tell him nothing concerning the accident. Defendant told him that he was northbound on Ward Parkway Plaza, the bicycle, without warning moved to the left side of the roadway as defendant was passing it. Defendant was 10-12 feet away when he first noticed the danger of an accident, his speed then was 30 M.P.H.

Corporal Robert Livingston was offered by plaintiff as an expert on stopping distances and speeds. Under the facts hypothesized, he testified that 84 feet of skid-marks indicated a speed of 36)4 M.P.H. Under the conditions, “at the minimum”, 83.06 feet would be required to stop at a speed of 30 M.P.H. Also, he testified that the normal reaction time is ^ths of a second and that during that time, at 30 M.P.H. a car travels 33 feet; at 20 M.P.H. a car travels 22 feet; at 25 M.P.H. a car travels 27 feet and at 10 M.P.H., a car travels 11 feet. There was no testimony elicited as to stopping distances, under the conditions prevailing, for any speed under 30 M.P.H.

The defendant Waldemer W. Meyer testified that he was on the way to work and was alone in his car. He was northbound on Ward Parkway Plaza; driving his 1957 Cadillac which was 6-7 feet wide. Within a block or two of the accident, a small foreign car was in front of him, northbound. It was 3 to 5 car lengths in front of him when it passed a boy on a bicycle. Defendant’s speed then was 25-30 M.P.H. He then “closed the gap” and started to pass the boy when he was 36-40 feet away (one estimate) or 50-60 feet away (another estimate). He had first seen plaintiff when he was 150 feet from him, but did not recall how far it was then from place of impact. When defendant started to pass, plaintiff was “in the right lane a couple of feet from the righthand side of the road”. As he started to pass the boy, he honked his horn, was almost even with him, the boy made an abrupt left turn “without looking back and without signaling and ran right into the righthand side of my car.” He also testified, “When he made his abrupt turn, I hit my horn and my brakes at the same time”, creating a doubt as to whether he sounded his horn twice, i.e., when he started to pass and when the boy made the turn, or only once. The jury could have concluded the defendant meant he sounded his horn only once, at the time of the application of the brakes. The plaintiff was 12-15 feet from him when he applied his brakes; the wheels locked immediately, and the car angled toward the left curb, sliding as it did. From other evidence in the record, however, it could be inferred that defendant was approximately 84 feet away from the point of impact prior to the application of the brakes.

We infer from all of the evidence, that the impact occurred in the west or southbound lane. Defendant testified his car traveled about 40 feet after impact, which involved the side of the right front fender. The speed of the car at impact was 25-26 M.P.H. Defendant could not judge the speed of the bicycle “but I would say he was going a good speed for a bicycle.”

The defendant’s other liability witness was Bernard J. Fremerman, the driver of the foreign car (a Triumph). He had passed the boy on the bicycle and after having passed, he heard the honking of a horn, looked in the rear-view mirror and “saw this boy pull into the side of the car”. He doesn’t recall whether the horn drew his attention to the boy or the fact that he had almost struck the boy himself when passing him. His testimony thereafter was inconclusive. At the time of the accident, the car “was about the middle of the street * * he was pulling away from the righthánd curb * * * to go around the boy.” When pressed, on cross-examination, for a more precise positioning of the car at the time of collision, he answered: “I couldn’t say exactly the number of feet; whether exactly center, or right of center, or left of center.” He placed the collision in the northbound lane, “pretty close to the middle of the street.” He had no judgment of the speed of either the bicycle or the car at any time he observed them.

The legal questions presented for our determination on this appeal are as follows:

1. The plaintiff contends, the trial court erred in submitting to the jury defendant’s Instruction No. 4, defendant’s contributory negligence submissions because it required plaintiff bicycle operator to exercise the highest degree of care, a higher standard than the law requires.
2. Defendant urges, plaintiff did not properly preserve that point for appellate review because he did not allege any error in the giving of Instruction No. 5 which defined the terms “negligence” and “highest degree of care”.
3. Also, that if plaintiff believed Instruction No. 4 was erroneous, he was under a duty to at least offer for the trial court’s consideration an instruction submitting his theory of the proper degree of care; and
4. Instruction No. 4 was proper because the Traffic Code of Kansas City, Missouri validly requires a bicycle rider to exercise the highest degree of care in its operation, and
5. Even assuming Instruction No. 4 was erroneous, the judgment of the trial court should be affirmed because plaintiff did not make a submissible issue as to lookout or excessive speed as submitted in plaintiff’s Instruction No. 2, and, lastly,
6. The evidence conclusively establishes that plaintiff was guilty of contributory negligence as a matter of law.

We consider plaintiff’s assignment of error and each of defendant’s countervailing arguments, seriatim.

Plaintiff contends that the trial court erred in submitting to the jury defendant’s Instruction No. 4, which reads:

“Your verdict must be for the defendant if you believe :
First, plaintiff either: failed to keep a careful lookout, or failed to signal his intention to turn, or plaintiff knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have slackened his speed and swerved but plaintiff failed to do so; and
Second, plaintiff’s conduct, in any one or more of the respects submitted in Paragraph First, was negligent, and
Third, such negligence of plaintiff directly caused or directly contributed to cause any damage he may have sustained.” (Emphasis ours.)

Section 304.010, R.S.Mo., 1959, requires “Every person operating a motor vehicle on the highways of this state” to “exercise the highest degree of care”. Plaintiff Ronald Van Brunt, of course, was operating a bicycle and not a motor vehicle. In Taylor v. Sesler, Mo.App., 113 S.W.2d 812, a case involving a collision between a taxicab and a bicycle, the court declared the standard of care required by the operators of each, at page 815:

“Under the law, the defendant Cook, driver of the taxicab in question, was required to use the highest degree of care in the operation thereof. The plaintiff (operator of the bicycle) was required to exercise ordinary care for his own safety * * * ” (Parenthetical comment added).

This is a correct statement of the law. See, also, Ward v. Goodwin, Mo.Sup., 345 S.W.2d 215. The defendant does not really dispute the impropriety of having given this Instruction No. 4, hut argues that plaintiff was under a duty to “at least offer for the trial court’s consideration an instruction submitting his theory of the proper degree of care.” He offers numerous authorities as supportive of that contention.

We have read those authorities and conclude they simply do not apply to our situation. We do not cavil at the holding in Kungle v. Austin, Mo.Sup., 380 S.W.2d 354, cited by defendant. There the court stated at page 360:

“Plaintiffs, if dissatisfied with the defendants’ instructions because of the lack of definition of ‘ordinary care’ * * *, had the right to offer an instruction on ■the subject * * *. Having failed to offer such an instruction, the appellants cannot now claim error on the part of the trial court.”

Such failure on the part of the trial court to give a defining instruction, it was there held, was nondirection rather than misdirection. In our case, however, Instruction No. 4 was a misdirection, improperly stated the law as to the standard of care imposed on plaintiff and no definition of that standard could have rectified that error. On the other hand, had plaintiff offered an instruction defining ordinary care, which was the proper standard by which plaintiff’s conduct was to be measured, it would have conflicted with the highest degree of care standard submitted by Instruction No. 4. The only manner by which matters could have been set aright was for plaintiff to have offered a contributory negligence instruction correctly stating the law as to the required standard of care, and, under our system of jurisprudence, there is no duty upon a party to correct an erroneous and misleading instruction of his opponent. In this regard, in Zalle v. Underwood, Mo.Sup., 372 S.W.2d 98 at page 103, the court stated:

“While it is true that an adverse party will not be heard to complain in the absence of a request for a more specific instruction where an instruction is correct in its general scope and does not amount to misdirection, and is merely indefinite, ‘it is not incumbent upon appellant to seek a more specific instruction, supplying the deficiency and correcting the error of plaintiff’s main instruction in order to render an objection thereto available.’ * * * There is no duty upon a party to correct an erroneous and misleading instruction of his opponent.”

The giving of Instruction No. 4 was a misdirection and constitutes reversible error.

Defendant suggests that plaintiff did not properly preserve for appellate review his contention that Instruction No. 4 required a higher degree of care than required by law because he did not allege any error in Instruction No. 5 which defined the terms “negligent” and “highest degree of care.” Defendant directs our attention to certain cases, among them Miller v. Gulf, Mobile & Ohio R. R. Co., Mo.Sup., 386 S.W.2d 97. It holds that specific objections not made at the trial of the case must be set forth in the motion for a new trial to preserve that error for review. We agree. Paragraph 7 of Plaintiff’s Motion for New Trial specifically states as a ground for such Motion: “The instruction requires a higher degree of care than is necessary for a 13 year old bicycle rider”. It sufficiently preserved that question for our review, V.A.M.R., Civil Rule 79.03. Defendant cites no authorities, and we know of none, which under these circumstances require a litigant to duplicate the preservation of the same point for review.

Defendant contends further that Instruction No. 4 was properly given, since the plaintiff was under a duty to exercise the highest degree of care while operating his bicycle according to the Traffic Code of Kansas City, Missouri. Defendant read in evidence Section 58.1220:

“Traffic laws apply to persons riding bicycles. Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all the duties applicable to the driver of the vehicle by the provisions of this chapter, except as the special regulations in this article and except as to those provisions of this chapter which by their nature have no application.”

Of course this court may not and does not take judicial notice of municipal ordinances. Peterson v. United Rys. Co. of St. Louis, 270 Mo. 67, 192 S.W. 938; City of Rolla v. Riden, Mo.App., 349 S.W.2d 255. The ordinance read into evidence imposes no explicit duty whatever on persons riding bicycles. It refers to other “provisions of this chapter”, but they are not part of the record and we do not judicially note them. This point is ruled against defendant.

The defendant then urges that even if Instruction No. 4 is erroneous, judgment for defendant should be affirmed because plaintiff did not make out a submissible case as to lookout or excessive speed as submitted in plaintiff’s Instruction No. 2.

Where, as in the case before us, the verdict and judgment were for the defendant and plaintiff appealed alleging trial errors, and defendant claimed that plaintiff failed to make a case for the jury, the reviewing court will view the evidence in a light most favorable to plaintiff, according him the benefit of all favorable inferences reasonably arising therefrom, and disregard that which is helpful to the defendant on the issues involved. McVicar v. W. R. Arthur & Company, Mo.Sup., 312 S.W.2d 805, 65 A.L.R.2d 785.

On the issue of excessive speed, although there was evidence that defendant was traveling 36½ M.P.H. immediately prior to the collision and that the speed limit was 30 M.P.H., plaintiff did not submit on a breach of the speed ordinance, but rather submitted on the common-law theory of excessive speed. This he was permitted to do. Brooks v. Mock, Mo.Sup., 330 S.W.2d 759; Glowacki v. Holste, Mo.Sup., 295 S.W.2d 135. Defendant argues that the mere fact defendant violated the speed ordinance is not a sufficient basis for an inference that such a violation was the proximate cause of plaintiff’s injuries, citing Bauman v. Conrad, Mo.App., 342 S.W.2d 284. He also argues that there was no evidence that the collision would not have occurred if defendant had been operating his vehicle at a much slower speed—“even ten to fifteen miles per hour.”

Of course, excessive speed cannot be the proximate cause unless it prevents a motorist from avoiding the accident, and hence it must be shown that the collision and resulting injuries would not have occurred except for the excessive speed shown by the evidence. Miller v. Fink, Mo.App., 387 S.W.2d 173. In the Bauman case cited by defendant, the court held that based on the evidence, as a matter of law, no proximate cause was demonstrated between the breach of the speed ordinance and the accident and injuries. The compass of that case, however, is very narrow, and is limited to that factual situation, as was observed by the Supreme Court in Watt v. St. Louis Public Service Company, Mo.Sup., 354 S. W.2d 889, at 891:

“In the Bauman case, the only evidence as to violation of an ordinance, limiting speed to 30 miles per hour, was the testimony of the plaintiff therein who said she only saw the car ‘about a second or two’ before the collision and estimated its speed as ‘about 35 miles per hour,’ but also said the car ‘was between one and two feet from the car in which she was riding when she first saw it’. The court pointed out there was no evidence as to the speed of the car in which she was riding or whether it had stopped at a stop sign * * * the width of the streets, [etc.]”

In Clark v. Dubbs, Mo.App., 360 S.W.2d 288, a case involving excessive speed, in commenting on both the Watt and Bauman cases, the court, at pages 292-293 distinguished them in terms of the period of time during which the speed violation continued, as a basis for considering whether the speed was the proximate cause of the accident and injury.

In our case, there was evidence that the street was 19 feet wide, that when defendant first saw plaintiff, the latter was 150 feet away; that he followed plaintiff and an intervening car and when that car had passed plaintiff, undertook to pass him himself. There was evidence that defendant was traveling 36½ M.P.H. immediately prior to application of brakes. The overall skidmarks were 84 feet; defendant traveled about 40 feet after impact. We do not fail to take into account that defendant was aware that plaintiff, a boy, was operating a bicycle in the same direction of travel as himself. We couple these facts and permissible inferences with the reaction time of 24ths of a second and the testimony that at 30 M.P.H. a car travels approximately 33 feet during that reaction period. At defendant’s speed of 36½ M.P.H., his car would have traveled just over 40 feet, during the reaction period. We must assume that defendant reacted immediately upon noticing the peril of collision, traveled about 40 feet until his brakes were applied and then traveled another 84 feet until his car came to a halt, or a total of 124 feet. Subtracting the 40 feet that defendant’s car traveled after impact, it can be inferred that plaintiff was about 84 feet away when 'defendant became aware of the danger. We admit this recapitulation contains elements of uncertainty. There was no evidence reasonably establishing the speed of the bicycle at any given time or place or the juxtaposition of the car to the bicycle at any given time or place; nor was the place of impact definitely established. We have but defendant’s testimony that he was 10 to 12 feet from plaintiff when he applied his brakes. A reading of the record, however, convinces us that the testimony to fill many of these voids was available by the witnesses presented, but was not fully developed.

The question of submissibility on the issue of common-law excessive speed is admittedly a close one. Based upon all the evidence, however, we cannot say as a matter of law that plaintiff did not make a submissible case on that issue. The furtherance of justice requires that a case should not be reversed without remanding unless we are convinced that the facts are such that a recovery cannot be had. Reece v. Reed, Mo.Sup., 326 S.W.2d 67; Reed v. Burks, Mo.App., 393 S.W.2d 377. We are not so convinced.

Defendant next urges that the evidence establishes plaintiff to have been guilty of contributory negligence as a matter of law.

At the time of the occurrence, plaintiff was a 13 year old, eighth grade student enrolled at Bingham Junior High School. The record does not disclose any unusual intellectual acuity or other talent which would establish the plaintiff as anything other than a normally adequate 13 year old boy, or mark him as one of adult maturity. Whether a child is guilty of negligence or contributory negligence, of course, depends upon whether he has conformed to that standard of conduct to be expected of a child of similar age, experience and capacity, under the same or similar circumstances. M.A.1.11.05; 65A C.J.S. Negligence § 146(1), page 182; Burger v. Missouri Pac.Ry.Co., 112 Mo. 238, 20 S.W. 439. The reason for this rule received its classic expression in the Burger case, at page 441:

“Common experience and observation teach us that due care on the part of an infant does not require the judgment and thoughtfulness that would be expected of an adult person under the same circumstances. In the conduct of a boy, we expect to find impulsiveness, indiscretion and disregard of danger, and his capacity is measured accordingly. A boy may have all the knowledge of an adult respecting the dangers which will attend a particular act, .but at the same time he may not have the prudence, thoughtfulness, and discretion to avoid them which are possessed by the ordinarily prudent adult person. Hence the rule is believed to be recognized in all the courts of the country that a child is not negligent if he exercise that degree of care which, under like circumstances, would reasonably be expected of one of his years and capacity.”

The application of the rule necessarily involves flexibility, each case requiring consideration of the circumstances presented. Perhaps because of that very fact, the appellate decisions on the subject are in seeming conflict. We refer those interested to “Contributory Negligence of a Minor as a Matter of Law in Missouri”, James W. Starnes, Washington University Law Quarterly, 1959, page 281 et seq. We do not undertake an extensive review of the authorities .on this subject because our Supreme Court has recently done so in Bollman v. Kark Rendering Plant, Mo.Sup., 418 S.W.2d 39.

We do not intend to summarily dismiss the authorities cited by defendant in support of his contention that the minor plaintiff, Ronald Van Brunt, was contributorily negligent as a matter of law, neither do we believe an extended discussion of them is necessary. The factual situation presented to us by the record is qualitatively different from those involved in the cases upon which defendant relies. In McGee v. Wabash R. Co., 214 Mo. 530, 114 S.W. 33, a bright 13 year old boy attempted to cross a single track crossing. At six feet from the crossing a train approaching could be seen from 40 to 100 feet away. Without looking, the boy attempted to cross the track and was killed. In Battles v. United Rys. Co. of St. Louis, 178 Mo.App. 596, 161 S.W. 614, a nine year old boy stepped from behind a moving streetcar going one direction and was struck by defendant’s streetcar going in the opposite direction. In each instance, recovery was barred by the negligence of the respective child as a matter of law. The last case cited by defendant, Carpenter v. Kansas City Public Service Co., Mo.Sup., 330 S.W.2d 797, involved a 72 year old plaintiff and is obviously irrelevant to our inquiry.

In the case before us, considering all the evidence in a light most favorable to plaintiff, there was no evidence that the minor plaintiff knew, let alone appreciated, the danger of making the lefthand turn when he did. The defendant’s evidence indicated that defendant first sounded his horn when the plaintiff moved from the east lane into the west lane of the street. At the time the horn was first sounded, defendant was in the process of passing by using that lane normally used by traffic coming from the opposite direction. Plaintiff’s evidence indicates that defendant sounded no horn at all. By the time the horn was sounded, at defendant’s speed, which we must assume was 36½ M.P.H., the collision was a virtual certainty, as by defendant’s evidence plaintiff and defendant were then 10 to 12 feet apart. It may be that plaintiff exposed himself to danger, but we cannot say, as a matter of law, under the circumstances, that plaintiff voluntarily exposed himself to a known danger. In the Bollman case, supra, we find at page 46:

“Other principles pertinent to an inquiry such as this (the contributory negligence of a minor) is ‘a voluntary exposure to known danger,’ (adopting the language found in Bridges v. Arkansas-Missouri Power Co., Mo.App., 410 S.W.2d 106) and that it is knowledge and appreciation of the danger and risk of injury in an instrumentality or condition that bars recovery for contributory negligence, and not merely knowledge of the physical characteristics of the instrumentality or condition; that ‘(m)ere knowledge that injury might result, without appreciation of the risk of injury to which his conduct exposed him, is not sufficient.’ Capacity to appreciate the danger is of vital importance in making this determination.” (Parenthetical comments and emphasis ours).

See also, Cathey v. DeWeese, Mo.Sup., 289 S.W.2d 51 and Bridges v. Arkansas-Missouri Power Co., supra.

We rule this point against defendant, since from the evidence the contributory negligence of the minor plaintiff was a jury issue, under proper instruction.

This case may be retried. We conclude with consternation that although the trial court and jury may have had the full benefit of the evidence presented, the record before us is full of unarticulated gestures. During the examination of witnesses Charles Schliebs, Elsie Schliebs and Corporal Anthony, repeated references were made to plaintiff’s photographic Exhibits 1 and 2. Attempts were made to develop and describe such crucial facts as point of impact, location of skidmarks, etc. As an example we relate the following dialogue from the testimony of Charles Schliebs:

MR. DRAPE: “Plaintiff’s Exhibit 2, right here. Could you tell us where Ron was when he got hit by the Cadillac?
(Objection)
MR. DRAPE: Did you see the Cadillac hit Ron?”
WITNESS : “I don’t think so.”
MR. DRAPE: “What was the only— what did you actually see occur between the Cadillac and Ron ?”
WITNESS: “Well, as good as I can remember three years ago, I turned around and saw Ron up in the air; the car was right here (indicating) and Ron was up like that (indicating).”
MR. DRAPE: “That’s all.”

Unseen gesticulations, even when recorded, convey no meaning. A reviewing court must base its conclusions and actions solely on matters appearing in the record. Pretti v. Herre, Mo.Sup., 403 S.W.2d 568; Lowes v. Union Electric Company, Mo. App., 405 S.W.2d 506. In the Lowes case, plaintiff’s expert was being interrogated concerning some electrical equipment. The record included repeated references of “here”, “there”, etc., from which it was impossible for the reviewing court to discern any meaning. At page 513, the court states:

“The words ‘here’, ‘there’ and ‘other side’ are meaningless in themselves. During the heated conflict of a trial, ardent advocates are often inclined to assume that we will get the same detailed picture they are witnessing. Not so; our knowledge of what happened in the courtroom is limited to what we read in the transcript * * * ”

The judgment of the trial court is reversed and the cause is remanded.

HOWARD, P. J., and CROSS, J., concur.

MORGAN, J., not participating, because not a member of the Court when the cause was submitted.