author: SPERRY, Commissioner.

text:
    Edward L. DUNBAR et al., Plaintiffs-Appellants, v. BOARD OF ZONING ADJUSTMENT et al., Defendants-Respondents.
    No. 24214.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.

      Walter A. Raymond, William W. Coch-rane, Raymond, West & Cochrane, Kansas City, for appellants.
    Herbert C. Hoffman, Guy W. Rice, Kansas City, for Board of Zoning Adjustment.
    William E. Kemp, James P. Tierney, Kansas City, for Receiver-Arizona Savings & Loan Assn.
   SPERRY, Commissioner.

The receiver of the Arizona Savings and Loan Association, Franklin J. Stowell, filed application for authorization to construct a temporary sewage lagoon in Kansas City, Missouri (North), before the Board of Zoning Adjustment. After a hearing thereon the Board approved the application. Appellants, plaintiffs below, instituted a certiorari proceeding in the Circuit Court of Platte County, seeking a review of the above order and ruling. Defendants are Mr. Stowell and the members of the Board. From an adverse judgment, plaintiffs prosecute this appeal.

Plaintiffs are the City of Weatherby Lake, the Weatherby Lake Improvement Company, and citizens, property owners and residents of the City of Weatherby Lake who use the waters of the lake, around which the residences of the city are built, for drinking, domestic purposes, boating, swimming and fishing. Their contention is that, since the effluent of the proposed lagoon, including detergents, will drain into Rush Creek, from whence it will enter Weatherby Lake, one and three-eights (1)4) miles below, it will result in poisoning and contaminating its waters to the great injury of the health and welfare of the citizens of the City of Weatherby Lake, and to the great economic loss to property owners thereof because of lower property values which will follow.

Our scope of review, in this case, is as stated in Veal v. Leimkuehler, Mo.App., 249 S.W.2d 491, 495-496. We are to determine whether the decision of the Board of Zoning Adjustment is supported by competent and substantial evidence upon the whole record. We may not substitute our judgment on the evidence for that of the Board, but we shall decide whether the Board reasonably could have made its findings and reached its result upon consideration of all the evidence before it; and we will set aside such decision if it is clearly contrary to the overwhelming weight of the evidence.

( Weatherby Lake is a body of fresh water, of two hundred sixty-eight (268) acres, ■of an average depth of probably thirty (30) feet, located in the center of the Fourth Class City of Weatherby Lake, which is zoned for residential uses only. There are about six hundred (600) owners of property. There are one hundred thirty-four (134) homes occupied by year round residents of the City. The homes are valued at from $15,000.00 to $90,000.00. The assessed value thereof is $690,000.00, and the actual value is about $2,000,000.00. Great numbers of people in the area enjoy recreational facilities of the lake, consisting of swimming, boating, fishing and picnicking. Many residents of the City pump water from the lake into their homes and use it for general domestic purposes. Some drink it without any kind of treatment and many drink it after treatment by filtration or other purification. Sewage is handled by septic tanks and there has been no evidence of ill health due to the water supply.

The appellants seek authority to construct a waste stabilization lagoon on property located twenty-five hundred (2500) feet north of Highway T and twenty-eight hundred (2800) feet west of Highway 71, in Platte County, on property zoned for agricultural use. The proposed site would consist of two — two acre cells on an 11.4 acre tract of land. Each cell would serve one hundred (100) houses and, ultimately, the capacity would be raised to four hundred (400) houses by the addition of an aeration unit, and chlorination. It would serve eighty-seven (87) acres of unplotted land lying to the southeast, and forty-five (45) lots in Prairie Point Manor, lying immediately north of Missouri Highway T.

,' This property was originally owned by the defunct Elbel Construction Company. It was acquired by defendants through foreclosure of notes and deeds of trust executed to Arizona Savings and Loan Association by Elbel, in the sum of $565,000.00.

The record consists of three hundred fifty (350) pages, transcripted from the hearings before the Board, plus exhibits consisting of four (4) pounds of typewritten, mimeographed and printed documents, and a forty-three (43) page transcript of the certiorari proceeding. The Board denied the application on the first hearing but, upon motion, granted a rehearing. Some additional evidence was heard and, at the conclusion of the second hearing, the application was approved. That decision was approved by the learned Circuit Judge of Platte County.

It would make this opinion an unconscionably long, document if we should set out the record in detail or discuss separately the testimony of the numerous well qualified professional witnesses who gave testimony for the respective parties. Such an opinion would probably not add materially to the accumulated legal knowledge on this subject. We will, therefore, set out the pertinent facts and issues, as gleaned from the entire record, as briefly as we may in order to dispose of this appeal on the issues presented.

The Plan Commission and the Public Health Engineering Division of Kansas City recommended approval of this application. A previous similar application had been approved by the Platte County Board of Zoning Adjustment, and by the Water Pollution Control Board. That approval was in 1958, but the permit was revoked because of the failure of the applicant, Elbel, to complete construction. Since that time the area has been incorporated into Kansas City. It was shown that the Division of Health of Missouri had surveyed the water supply of the people of Weather-by Lake and had officially reported it to be unsatisfactory from a health standpoint, for domestic use; that sewage disposal facilities were inadequate from a health standpoint; and that the lake waters were unsatisfactory for swimming purposes.

It was established that the Department of Health, of Missouri, approves the use of lagoon type sewage treatment plants, as modeled by a plant built and operated under . the supervision of the U. S. Public Health Department, at Fayette, Missouri.

There was competent engineering evidence to the effect that, subsequent to the approval of the plans submitted by Elbel, construction began and that that project was 47% completed, at a cost of $20,000.00, prior to its abandonment; that this type of lagoon, as such lagoons are -presently designed and operated, will remove 99.9% of the Coliform (disease producing bacteria), and 85 to 90% of the organic matter; that the effect of treatment of sewage in-such plants is greatly improved over what it was prior to 1962; that this plant, as designed, will not increase pollution of the waters of the lake to any greater degree than the waters are polluted as of now; that permissible loading, of people per acre of water, at the time the hearing was held, is one half what had been permissible when other lagoons in the area were constructed; that lagoon planning and performance, at this time, is far superior to that prevailing when other lagoons in the area were built; that the health department has made “on the ground” studies and has approved the site and the proposed plans for construction of this project; that aeration of the effluent, as it progresses one and three-eights (1¡HÍ) miles down Rush Creek, before entering the lake, will further aid the process of purification and reclamation of the water, and will eliminate foam engendered by detergents.

The opinion evidence to the effect that effluent from the lagoon will not further contaminate the lake waters is based, partially, on testimony to the effect that raw sewage from five houses in the area covered by this application is entering the lake. There was testimony to the effect that these houses alone produced more pollution than would the lagoon produce when completed; but there was testimony to the effect that these houses do not produce raw sewage which goes into the lake. There was testimony to the effect that the entire drainage area is contaminated from general usage, and that effluent from a septic tank from a high school, and from septic tanks of houses in the City of Weatherby Lake, is entering the lake waters through under-ground drainage.

There was' testimony to the effect that Kansas City has established a water line to serve this area; that gas, telephone and electrical facilities are ready to be hooked on to; and that, but for the lack of sewage facilities, the area is ready for housing development. There was also evidence to the effect that its development for residential purposes is generally desirable.

For plaintiffs there-was competent, credible professional testimony to the effect that, to provide lagoon sewage disposal for the entire area available for development adjacent to the area in question, it would require thirty-two (32) lagoon installations, similar to the one here considered; that all would drain into Weatherby Lake; that detergents cannot be eliminated from sewage ; that they would utterly ruin the waters of Weatherby Lake; that, as a result, property values in the City of Weatherby Lake would depreciate; that, if this application is approved, the lake waters would become so contaminated as to render them unfit for human consumption, or for swimming; that fish could not live in the lake; that the waters would stink; and that the City of Weatherby Lake and its residential property would have to be abandoned.

Plaintiffs also produced evidence tending to prove that chemical analyses of water, taken in the past from the lake, had never indicated that it was unsafe for human consumption; that many residents drink it without even filtering it, and that others have their own private purification plants.

Plaintiffs offered testimony to the effect that the effluent from the “Peterson” sewage lagoon, located nearby, is malodorous, heavily impregnated with detergents, covered to a depth of several feet with foam below its outlet, and that it is, to all intents and purposes, raw sewage, and that that lagoon is similar in construction and oper» ation to that here involved.

Plaintiffs also offered into evidence certain pictures depicting conditions shown by-testimony to have prevailed below the outlet of the “Peterson” lagoon in the past. Objection to their admission was sustained.

■ Mr. Myers, a qualified engineer, testified for plaintiffs, in some detail, as to alternate plans for solving the sewage disposal problem of the housing to be developed on the plot here involved. He proposed a plan which he believed could be put into operation without resorting to the lagoon plan proposed by defendants, and which, he thought, was feasible from a cost standpoint. However, qualified witnesses testified on behalf of defendants to the effect that there was no other economically feasible plan for sewage disposal available at this time and that, if the lagoon plan is disapproved, the area in question must, of necessity, remain agricultural in character. The evidence was that, after the entire area is developed, trunk sewers would probably be installed, with central treatment, and that such a solution would be an improvement over the lagoon method of disposal.

A review of all of the evidence in this case indicates the wide differences in the views and opinions of the many experts in engineering, sanitation, health, water pollution, etc., who gave testimony. There was convincing evidence tending to show that the water of Weatherby Lake is and has been free of pollution to such an extent that it is potable, safe, and fit for human consumption without any treatment. Other evidence tended to prove that it is and has been for some time, unsanitary and unsafe for drinking or swimming.

There was testimony tending to prove that the effluent which would enter the lake from the lagoon would be heavily contaminated, dangerous to the health of anyone who might drink it, and that it would kill the fish in the lake; that the waters would become so malodorous and undesirable as to demoralize property values in the City of Weatherby Lake and, ultimately, cause its abandonment. On the contrary, there was competent evidence tending to prove that the effluent produced by the lagoon would contain a lesser degree of pollution than currently exists in the water of the lake.

Citizens not trained in the fields of health and sanitation, find it difficult to believe that man’s ingenuity can, by lagoon sewage treatment, convert his own excrement into palatable and safe drinking water for his own consumption. Such an accomplishment was never imagined by the ancient alchemists who merely sought to transmute base metals into gold. But there is convincing evidence to that effect in this record.

The members of the Board are intelligent and successful men from various walks of life. They are experienced in evaluating evidence adduced in cases of this nature, in a fast growing city where corn fields are rapidly being converted into great housing and industrial complexes. The Board heard the evidence once and denied the application. A rehearing was granted and the evidence received at the first hearing was again considered, together with a large volume of evidence received at the second hearing. It approved the application. In Veal v. Leimkuehler, supra, 249 S.W.2d 491, the court said:

“It is the duty of the board of adjustment to find and determine the facts and in so doing to weigh the evidence presented to it. It may disregard and disbelieve evidence which in its judg- ' ment is not credible even though there is no countervailing evidence to dispute or contradict it.”

We may not weigh the evidence and substitute our judgment for that of the Board.

Plaintiffs contend that the Board’s order is void because beyond its jurisdiction to make, for the reason that detailed plans of the proposed lagoon plant were not attached to the application, as required by Article 11(a) 2, page S, Rules of the Kansas City Board of Zoning Adjustment. There is no evidence in the record that such a rule exists and we cannot take judicial notice of its existence. City of Rolla v. Rider, Mo.App., 349 S.W.2d 255, 257-258.

It is contended that the Board had no jurisdiction to make an order authorizing the establishment of a public nuisance. The evidence of record fails to establish that a sewage disposal lagoon is a nuisance.

The decision and order of the Board approving the application is supported by competent and substantial evidence on the whole record, and it could have reasonably reached its decision and made the order that it did make. It is not against the overwhelming weight of the evidence.

The judgment of the Circuit Court is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

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


source: Caselaw Access Project

author: HUNTER, Judge.

license: Public Domain

text:
    Victor ODDO, Sr., Appellant, v. ASSOCIATED WHOLESALE GROCERS, INC., a Missouri Corporation, Respondent.
    No. 24150.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.

      Williams, Norton & Pollard, North Kansas City, for appellant
    Rope, Shanberg & Rope, Herbert M. Rope, Kansas City, for respondent.
   HUNTER, Judge.

This is an action on a running account brought by Associated Wholesale Grocers, Inc., respondent against Victor Oddo, Sr., appellant. As a result of the jury waived trial the circuit court entered judgment for respondent for $9,606.51 plus $1,499.68 interest

On this appeal it is acknowledged that the amount of the account owed is correctly set forth in the judgment, and the sole dispute is whether that account is owed by appel-' lant Victor Oddo, Sr., an individual, or by, a corporation known as Oddo’s Food Cen- , ter, Inc.

This being a jury waived casé, our duty is to review it upon both the law and the evidence as in suits of an equitable nature. The judgment is not to be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Civil Rule 73.01(d), V.A.M.R. This we proceed to do.

Associated Wholesale Grocers, Inc., is a corporation owned entirely by its member grocers. Its purpose is to furnish its members with merchandise at the lowest possible cost, assist them in their business and to periodically rebate to them the- profits (termed “patronage”) derived from its operation. These profits are of three types: (1) Those resulting from stock purchased in the form of net earnings' for the fiscal year; (2) a savings account in which the stockholder invests money, and (3) “.direct earning that is (sic) allowed each member * * * pro rata of his purchase.” The corporation is conducted as a “co-operative”, being expressly recognized in the Internal Revenue Code.

Any person or entity desiring membership in respondent (popularly known as “A. G.”) must make a written application to it, accompanied by a financial statement showing the applicant’s assets and net worth, among other things. A. G.’s by-laws require approval of all requested memberships by its “management”; that is, by its General Manager, Mr. Louis Fox. After such approval the new member is given a stock certificate of respondent corporation, is granted certain credit, and receives the customary membership rights and privileges as well as obligations. Each member furnishes A. G. with an “order strip” which is taken to its IBM department where through automation it initiates an invoice calling for merchandise identified by code and description. When the invoice (order) is filed the resulting charge “in turn is printed out of the IBM department on to the member’s account.” Statements (a member’s billing and bookkeeping record) are mailed to all members every week. A. G.’s by-laws give it the right to setoff a member’s equities against this account upon cancellation of membership.

Victor Oddo, Sr., for approximately twenty years operated a grocery store under the name “Oddo’s Food Center” at 1051 Burlington, North Kansas City, Missouri. His former source of grocery supplies was going out of business, and on September 15, 1959, he made written application in his individual name as sole proprietor for membership in respondent corporation. He was interviewed by one of its employees. He furnished a personal financial statement to obtain credit. Also, a Dun & Bradstreet credit report was obtained on him.

Mr. Oddo testified he told the interviewer that “I had instructed my attorneys and my auditors to take inventory of the store because I was in the process of incorporating, which I had started right round the first part of September to incorporate my store, and he says, ‘Well, when you do,’ he says; ‘You just let me know,’ so — .” Mr. Oddo was accepted as a member and his capital stock was issued to him as an individual.. He provided respondent corporation with a billing strip in his individual name and never changed it thereafter.

Mr. Oddo as an individual member of respondent immediately commenced purchasing grocery supplies from it and continued to do so until December 16, 1961. At a somewhat undesignated time but probably shortly after obtaining his membership in respondent corporation Mr. Oddo mentioned to Mr. Fox, and to several minor employees, that he had incorporated. However, he made no request to respondent for membership for Oddo’s Food Center, Inc., or to substitute that corporation in lieu of himself. (It was Mr. Fox’s testimony that if such a substitution had been proposed respondent would have asked for a financial statement on the corporation including its net worth before consideration would be given to the request.) He did not ask anyone to bill it instead of him for supplies he continued to order. Nor did he provide respondent with any financial statement of the corporation or disclose its assets or the amount of money with which it commenced business. The sign on his business premises at 1051 Burlington remained until late 1961 as it had since 1942, “Oddo’s Food Center”. He continued to be billed per the billing strip as an individual. He was furnished in his individual name “statements of equity” in 1960 and 1961, involving many thousands of dollars in year end patronage rebates and member deposits, all of which were applied to his personal account. Oddo’s Food Center, Inc., has never appeared in respondent’s business records.

Oddo’s Food Center, Inc., was incorporated September 30, 1959, and its certificate to do business was issued October 14, 1959, by the Secretary of State of Missouri. The corporation is capitalized for the sum of $1,000. Its given business address is 205 Pioneer Building, North Kansas City, Mo.

Turning to the account in question, as previously mentioned, it was opened in the name of Victor Oddo, Sr., and was always so carried on respondent’s books. The first purchase on it is dated September 23, 1959. From time to time appellant made payments on it and these payments, some eighty-two in number, were made by appellant with Oddo’s Food Center, Inc., corporation checks. These checks when received were posted by clerical employees of respondent. Each week appellant was mailed a statement of his account with respondent.

About September 30, 1961, Mr. Oddo and his wife sold the stock of Oddo’s Food Center, Inc., to his brother-in-law Harry Nigro and his wife. The Nigros changed the corporation’s name to “Ace Food Center” and used the 1051 Burlington address as their business location. They obtained a membership in respondent corporation about October, 1961. This membership was entirely new and separate from that of Mr. Oddo’s. Apparently, at a later date this latter corporation, Ace Food Center, became bankrupt.

On this appeal appellant’s sole point is that the trial court erred in rendering the mentioned judgment, contending that if a seller has actual knowledge that a buyer is incorporated and continues thereafter to do business with the buyer without taking any affirmative action to advise the buyer that the seller is dealing with him as an individual rather than a corporation, then the seller cannot recover against the individual on an open account, citing Martin v. Fewell, 79 Mo. 401.

One difficulty with appellant’s contention is that it does not fit the facts of this case. The relationship between appellant and respondent was unique and was more than that of an ordinary debtor-creditor. Appellant became entitled to purchase and to obtain credit from respondent only by becoming a stockholder and member of respondent. This required him to be accepted as a member by respondent. To do this appellant made a personal membership application, submitted personal financial information and received certain stock, certain credit and the right to other benefits as an individual. As an individual and based on his individual financial situation and acceptance into membership of A. G. he was extended thousands of dollars in credit. In view of the undisputed circumstances surrounding the establishment of the open account it is clear that the undertaking to sell to Oddo was to sell to him as an individual member of A. G. on an open account.

The record before us does not disclose any agreement, actual or implied, by respondent (A. G.) to look to the Corporation Oddo’s Food Center, Inc., instead of to Mr. Oddo individually merely upon such corporation coming into existence. At most the statement attributed to Mr. Fox by appellant (and which Fox did not recall making) is no more than Mr. Fox’s suggestion that if and when such a corporation is formed Mr. Oddo could then let him know and, impliedly, take the customary action to seek A. G. membership and credit for it. Nothing occurred thereafter that was sufficient either as a matter of fact or law to change the undertaking so as to make it one between A. G. and the corporation, Oddo’s Food Center, Inc. instead of between A. G. and Oddo personally. The mere fact that respondent continued to do business with appellant after some of its personnel became aware of the formation of the corporation, Oddo’s Food Center, Inc., in and of itself is insufficient to demonstrate that respondent was thereafter looking to the corporation rather than to Mr. Oddo for payment of the account.

While we experience some difficulty in understanding the precise legal theory upon which appellant relies as changing the undertaking and the account from one between A. G. and Mr. Oddo to one between A. G. and Oddo’s Food Center, Inc., there is some suggestion that a novation occurred. It is fundamental that a novation exists only by reason of an agreement. To constitute a novation there must be three parties to the agreement; namely, the creditor, the original debtor and the third person who is to become the new debtor. They must all agree that the original debtor be released and that the third person be substituted in his stead. The intention of the obligor that there be a new agreement is not sufficient. The creditor must concur in this. Hicksville Handle Co. v. Herb, Mo.App., 226 S.W. 63; Hutcheson & Co. v. Providence-Washington Ins. Co. of Providence, R. I., Mo.App., 341 S.W.2d 142, 66 C.J.S. Novation § 11, page 691.

Here the creditor, A. G., did not actually or impliedly make any such agreement or give any such concurrence. In fact A. G. was not even asked to do so. Such a request presumably would have occasioned an application by Oddo’s Food Center, Inc., for membership in A. G., and for the furnishing of information concerning its as■sets and net worth so that A. G. could determine if it would grant membership and credit, and to what extent

Appellant’s brief also suggests that at some instance in the dealings respondent impliedly contracted by estoppel with the corporation and must look to it alone. However, estoppel is an affirmative defense and as such must he pleaded. This was not done. See Civil Rule 55.10, V.A. M.R. Rather, the defense pleaded in the answer was that the corporation “Oddo’s Food Center, Inc.,” was a member of Associated Wholesale Grocers, Inc., and that if there was any money owing plaintiff “as a result of the business done with plaintiff and said corporation that this indebtedness is the debt of the corporation and not of the defendant individually.” Even more fundamental, as this court stated in National Match Co. v. Empire Storage & Ice Co., 227 Mo.App. 1115, 58 S.W.2d 797, 799, “To constitute estoppel in pais, three things must occur: First, an admission, statement or act inconsistent with the claim afterwards asserted and sued on; second, action by the other party on the faith’ of such admission, statement or act; and, third, injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act.” As we view the facts none of these three elements necessary to constitute estoppel is present in this case.

The cited case of Martin v. Fewell, supra, is distinguishable and not persuasive of appellant’s contentions. In the Martin case, upon facts quite different from those before us, it was stated that where partners have ■dealt as such with a seller, and after incorporation, continue to deal as before, having their bills paid the same way, without giving any notice of their altered condition, they will continue to be liable as partners, unless the seller has knowledge thereof derived from some other source. Obviously, if the creditor knows the partnership no longer exists but has become a corporation it is only common sense to believe any further credit that is extended is to the corporation. Cf. Darling v. Buddy, 318 Mo. 784, 1 S.W.2d 163, 170(15), 58 A.L.R. 493; Armstrong v. Henley, 182 Mo.App. 320, 170 S.W. 402(1).

As a result of our own independent examination and review of the evidence and law we are convinced the circuit court’s judgment is correct. The judgment is affirmed.

All concur.

BROADDUS, J., not participating.


author: SAMUEL E. SEMPLE, Special Judge.

text:
    Jeanne MILLER, Plaintiff-Appellant, v. Paul FINK, Defendant-Respondent.
    No. 31691.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 12, 1965.

      Robert A. Mcllrath, Flat River, W. T. McGhee, Brentwood, for plaintiff-appellant.
    Roberts & Roberts, Farmington, Dear-ing, Richeson, Weier & Roberts, J. Richard Roberts, Hillsboro, for defendant-respondent.
   SAMUEL E. SEMPLE, Special Judge.

This is an action for $15,000 damages for personal injuries sustained by plaintiff Jeanne Miller as a result of a collision of an automobile being driven by defendant, Paul Fink and a pick-up truck being driven by plaintiff at a street intersection in Farm-ington, Missouri on June 20, 1961. The trial resulted in a verdict for the defendant and plaintiff has perfected an appeal to this Court charging error in the giving of defendant’s contributory negligence Instruction No. 4.

The collision giving rise to this action occurred at the intersection of Seventh Street and Taylor Avenue in Farmington. Seventh Street runs east and west and Taylor Avenue runs north and south. There were no stop signs on either street at the intersection. Plaintiff was driving a pick-up truck with her two small children and her 14-year-old brother as passengers east on Seventh Street. Defendant was driving his automobile South on Taylor Avenue and a third vehicle driven by Joan Jenkins, with her three children and Carol McCullough as passengers, was proceeding west on Seventh Street.

Those who testified to the pertinent facts ■surrounding the collision were plaintiff; her 14-year-old brother, J. D. O’Sullivan riding as a passenger in the pick-up truck ■driven by plaintiff; the defendant; and Carol McCullough, a passenger in an automobile driven by Joan Jenkins headed west on Seventh Street.

Plaintiff testified that shortly before the collision she left a market on Perrine Street and drove North to the intersection of Perrine Street and Seventh Street and turned east on Seventh Street. That as she turned on to Seventh Street, she saw defendant’s automobile which was stopped facing South on Taylor Avenue on the North side of the intersection. She also saw the vehicle of Joan Jenkins which was stopped on Seventh Street facing the west just east of the Taylor Avenue intersection. That it was about five hundred feet from Perrine Street to Taylor Avenue along Seventh Street and that her view of the intersection was clear and unobstructed. That she drove east along Seventh Street toward the intersection at a speed of 15 to 20 miles per hour and as she neared the intersection, she slowed her speed, shifted gears and started across the intersection at less than 10 miles per hour. When she got out into the intersection, the left rear side of her truck was struck, but she never saw defendant’s automobile start up from its stopped position and come into the intersection.

Plaintiff’s witness, J. D. O’Sullivan, her 14-year-old brother, testified that he was riding with plaintiff on the right side of the seat and that after they turned onto Seventh Street heading east and got about half way up the block, he saw the defendant’s car stopped at the corner heading south on Taylor Avenue and the Jenkins car headed west on Seventh just east of Taylor Avenue. That his sister was driving at a speed of about 15 to 20 miles per hour along Seventh Street and just as she got to the intersection, she slowed down to change gears and then started on across the intersection at about 5 or 6 miles per hour or less. Just as the front end of the truck crossed the intersection, they were hit.

Defendant’s witness, Carol McCullough, testified that she was a passenger in an automobile driven by Joan Jenkins which was headed west on Seventh Street and stopped on the east side of the Taylor Avenue intersection. That she saw plaintiff’s truck coming east on Seventh traveling at a speed of more than 15 miles per hour and that it did not slow down before the collision. That she saw defendant’s car coming south on Taylor and it did not stop for the intersection.

Defendant testified that he was driving south an Taylor and as he neared the intersection, he saw the Jenkins car approaching from his left on Seventh and brought his car to a stop. He then looked to his right and did not see anything and when he looked back to his left, he saw the Jenkins car had stopped, so he started to cross the intersection and plaintiff’s truck shot in front of him and the collision occurred. That after he started up, he only traveled about 10 to 15 feet when the collision occurred.

Plaintiff charges error in the giving of Instruction No. 4 in two respects, (1) because there was no evidence to support the instruction and (2) the instruction is not the law and is a misdirection. The only objections made to the trial court were the usual general objections to all of the defendant’s instructions made at the time the instructions were given by the Court and in the plaintiff’s Motion for New Trial that there “was no evidence to support the instruction on contributory negligence as given in Instruction No. 4” and that “the verdict directing instruction of the defendant is not the law and is a misdirection.” There is a serious doubt that these general objections to Instruction No. 4 are specific enough to support the points raised for appellate review under Civil Rules 70.02 and 79.03, V.A.M.R. However, as the plaintiff now contends (1) that there was no evidence of proximate cause between the hypothesized facts submitted to constitute negligence and the collision of the vehicles' resulting in plaintiff’s injury and (2) that the instruction erroneously directs a finding of negligence by the jury on the facts hypothesized in the instruction, the contentions of plaintiff will be reviewed. Meyer v. Beck, Mo.App., 368 S.W.2d 905, 907 and Civil Rule 79.04 V.A.M.R.

Plaintiff says in effect that Instruction No. 4 was erroneous in submitting contributory negligence on the theory of excessive speed under the circumstances because there is no evidence to show that excessive speed was the direct and proximate cause of the collision and resultant injury to plaintiff. Plaintiff states there is no evidence whatever to show that if plaintiff had entered the intersection at a slower speed that the collision could have been avoided and cites the case of Copher v. Barbee, Mo.App., 361 S.W.2d 137, 148, which sets out the general test of causat connection between negligence and injury. To be more specific, it should be noted that the courts of this state have held that excessive speed is not the proximate cause unless it prevents the operator of the vehicle traveling at the excessive speed from avoiding the accident. It must be shown therefore that the collision and resulting injuries would not have occurred except for the excessive speed shown by the evidence. Watt v. St. Louis Public Service Co., Mo., 354 S.W.2d 889, 891; Bauman v. Conrad, Mo.App., 342 S.W.2d 284, 288.

Plaintiff argues that there was no evidence showing the location of plaintiff’s truck when defendant started into the intersection, making it impossible to determine whether or not the speed plaintiff was traveling hindered her in discovering defendant moving into the intersection or prevented her from avoiding the collision in some manner thus leaving the issue of proximate cause of plaintiff’s injury to guesswork, speculation and conjecture.

“What is a proximate cause is ordinarily a jury question.” Watt v. St. Louis Public Service Co., supra. “Causal connection, it is true, must be proved by the evidence, as a fact, and not be left to mere speculation and conjecture. The rule, however, does not require that there must be direct proof of the fact itself. This would often he impossible. It is sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred.” Watt v. St. Louis Public Service Co., (354 S.W.2d l. c. 891) supra; Pentecost v. St. Louis Merchants’ Bridge Terminal R.R. Co., 334 Mo. 572, 66 S.W.2d 533, 536 and cases cited.

In this case there was evidence that there were no stop signs at the intersection, that Seventh Street was approximately 20 feet wide, that plaintiff was driving at a speed in excess of 15 miles per hour for a considerable distance as she approached the intersection and that she did not slow down on entering the intersection or before the collision, that she had a clear view as she approached the intersection and saw defendant’s car on the north side of the intersection when she first turned onto Seventh Street, but she did not see defendant start up and come into the intersection.

It is concluded that the jury reasonably could have found that under the evidence as to the speed plaintiff’s truck was being driven as it approached and entered the intersection, the location of defendant’s automobile at the intersection, the width of Seventh Street and the visibility at the intersection, which they reasonably could have believed, an alert driver would have had the ability to avoid the collision if the pick-up truck had been operated at a slower speed. Therefore it is held that there was evidence to support the issue of proximate cause submitted in Instruction No. 4 and that said instruction is not erroneous on that ground.

Plaintiff also complains that there was no evidence to support the hypothesized finding in the instruction that plaintiff approached the intersection at a speed in excess of 15 miles per hour and entered said intersection without reducing her speed. This contention is without merit as defendant’s witness Carol McCullough testified that she observed plaintiff’s vehicle coming east toward the intersection at a speed of more than 15 miles per hour and that she did not see it slow down.

Plaintiff also complains that Instruction No. 4 is not the law and is a misdirection in that the jury is directed to find the plaintiff negligent as a matter of law rather than submitting the question of negligence to the jury for determination. The instruction reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that on or about the 20th day of June, 1961, plaintiff was driving a vehicle in an easterly direction on Seventh Street and was approaching the intersection of Taylor Street and Seventh Street in Farmington, Missouri, if you so find; and
“If you further find that at said time and place defendant was driving a vehicle in a southerly direction on Taylor Street and approaching said intersection, if you so find; and
“If you further find that as plaintiff was approaching said intersection she was driving at a rate of speed in excess of 15 miles per hour and that she entered said intersection without reducing her speed, if you so find; and
“If you further find that such speed under the circumstances above set forth was excessive and dangerous, if you so find;
“Then you are instructed that plaintiff was guilty of negligence and if you further find that said negligence, if any, caused or contributed to-cause the collision mentioned in the evidence and plaintiff’s injuries, if any, then your verdict shall be in favor of defendant and against the plaintiff and this is true even if you may find that the defendant was also guilty of negligence under other instructions herein.”

Defendant in his brief “acknowledges that the instruction does not require the jury to make a finding of a violation of the highest degree of care” constituting “negligence on the part of plaintiff.” However, defendant argues that because the jury was required to find that plaintiff was driving at a rate of speed which is excessive and dangerous under the circumstances is negligent as a matter of law. Defendant cites the cases of Clark v. Dubbs, Mo.App., 360 S.W.2d 288, 291 and Benzel v. Anishanzlin, Mo.App., 297 S.W. 180. Neither of these cases support defendant’s contention that the facts hypothesized in Instruction No. 4 warranted a positive direction as a matter of law that plaintiff was negligent. Both of the cases cited involved hypothesized facts which were in violation of a statute or ordinance and were considered negligence per se. These cases held that no finding by the jury that the acts were negligently done was required.

“ ‘Negligence does not become a question of law alone, unless the acts constituting it are of such a character that all reasonable men would-concur in pronouncing them so.’ * * * Accordingly, an instruction should ordinarily submit to the jury the pleaded acts, as shown by the evidence, for the jury to determine whether or not the commission of such acts was negligence.” Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045, 1051, 1052, and cases therein cited. Therefore, unless the facts hypothesized as a matter of law constitute negligence and there is no room for conflicting inferences the jury should be required to determine whether such facts constitute negligence. Swain v. Anders, supra. It has even been recognized by the courts that there is a difference in the nature of the duties imposed by various rules of the road. Some impose absolute duties, unmixed with the exercise of judgment. Others require exercise of judgment, and in certain circumstances, deviation from a statutory standard will not be considered as negligence per se and it would be error to instruct on negligence as a matter of law. Lincoln v. Railway Express Agency, Inc., Mo., 359 S.W.2d 759, 765 and cases therein cited.

In this case the instruction does not involve a violation of an ordinance or statute controlling vehicular speed, however, the instruction does positively direct the jury that the facts hypothesized therein were negligent as a matter of law. The instruction removed from the jury’s consideration the question of whether plaintiff was exercising the highest degree of care under the circumstances. It cannot be said that the question of whether excessive speed under the circumstances as hypothesized in Instruction No. 4 was a violation of plaintiff’s duty to exercise the highest degree of care leaving no room for conflicting inferences or to show that plaintiff was guilty of contributory negligence as a matter of law, and that all men could draw no other inferences. Here there was evidence that plaintiff drove into the intersection before the defendant, and to support this evidence all of the testimony showed that defendant’s automobile struck the left side of plaintiff’s vehicle'. There was evidence that defendant was stopped at the north edge of the intersection as plaintiff approached. There was also evidence that Seventh Street was approximately twenty feet wide. The jury could have inferred from the evidence that defendant suddenly started up from his stopped position as plaintiff entered the intersection and traveled a very short distance to bring his vehicle into a collision with plaintiff’s truck. In the light of these possible inferences of a sudden and unusual circumstance it could reasonably be concluded that plaintiff was not negligent under the circumstances hypothesized in Instruction No. 4. The requirements as to the standard of care required of a driver of a vehicle must be given a reasonable construction and be reasonably applied to unusual or emergency circumstances. Willhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956, 958. The instruction took from the jury its exclusive function of determining the question of negligence. In so instructing the jury, the Court prejudiced the rights of plaintiff and was therefore prejudicially erroneous. Karch v. Stewart, Mo., 315 S.W.2d 131, 137.

Therefore, because of the error in giving Instruction No. 4, the judgment is reversed and the cause remanded for a new trial.

RUDDY, P. J., and WOLFE, J., concur.


text:
    Richard LOTZ, Respondent, v. MISSOURI DISTRIBUTING COMPANY, Appellant.
    No. 24104.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.

      Somerville & Cleaveland, Ronald L. Som-erville, Chillicothe, for appellant.
    Don Chapman, Jr., Chapman & Chapman, Chillicothe, for respondent.
   HUNTER, Judge.

This is a suit in two counts by Richard Lotz, respondent, against Missouri Distributing Company, appellant. In Count I respondent sought $2,262.20 unpaid sales commissions (“overage”) covering the period of May 2, 1958, to August 27, 1960; $80.78 for unpaid commissions for the period ending February 26, 1962, and $578.66 for overcharge of truck rental. In Count II respondent sought $900.00 unpaid wages after June 12, 1962, the date of his alleged discharge. The case was tried to the court, and judgment was for respondent for the claimed $2,262.20, the claimed- $80.78, for $397.51 for truck rental, plus interest for a total of $2,995.81 on Count I; and for $900.00 on Count II. The appeal is from that judgment

This being a jury waived case, our duty is to review it upon both the law and the evidence as in suits of an equitable nature. The judgment is not to be set aside unless clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Civil Rule 73.01(d), V.A.M.R.

Appellant contends the trial court erred in overruling its motion for a directed verdict filed at the close of the evidence. Appellant also contends the judgment was for the wrong party. Appellant did not introduce any evidence at the trial. We will take up appellant’s specific reasons for its contentions after setting forth the gist of the evidence concerning them.

Richard Lotz became an employee of appellant as a salaried warehouse worker on November 26, 1951. In January, 1952, he went “on the road” as a sales trainee and in September, 1952, became a route salesman. His principal duties consisted of driving a truck loaded with appellant’s merchandise consigned to him and to his account, calling on customers and selling them this merchandise from the truck. His remuneration for sales made generally consisted in the difference between the price for which he sold the merchandise and the cost of it to him. Fie was provided a catalogue of appellant’s merchandise showing a particular retail price for a certain item, and he was authorized to sell at that price or less.

Each Saturday Lotz would go to the company’s office and order whatever items he needed, usually to replace those sold. An invoice in duplicate would be prepared by employees of the company. The order shown on the invoice was filled by company employees who would get the specific items from the warehouse, check them, load them on a cart and deliver them to Lotz to load on his truck. The invoice and all copies were sent to the front office where the price of each item was computed and charged to Lotz’s consigned account. Lotz received one copy of the invoice and checked the items listed on it.

Lotz worked his route from each Monday morning until Friday night, calling on an average of 65 customers per week. When he sold an order of merchandise he would take the merchandise' from the truck, deliver it to the customer and collect the sales price from the customer. A sales slip in triplicate was prepared by Lotz showing the customer’s name, the date, amount of merchandise, and the price charged. At the end of each sales day Lotz prepared a daily report showing the various customer’s names, amount of merchandise sold to each, the amount of the commission withheld on each sale and the total commission amount for the day. At the end of each work week Lotz prepared a similar weekly report in duplicate, showing total cash sales and commissions for the week. Lotz retained one copy of these daily and weekly reports and turned in one copy of them to the company. Also at the end of each week he turned into the company the cash from these sales less whatever commission he withheld. He was given credit by the company on his account for the cash turned in.

Periodic, but infrequent, inventories were taken by the company on Lotz’s truck. The process of taking the inventories consisted of removing the merchandise from the truck, counting it, totaling up the amount and checking it against the consigned account. An “ending inventory” was the term used for the mentioned periodic inventories and it determined whether Lotz had an “overage” or “shortage” with respect to his consigned account. A “beginning inventory” was the term used to describe the amount for which he was billed when starting out after the completion of a periodic ending inventory. An “overage” was described as having more merchandise on the truck at the time of an ending inventory than was called for in the consigned account. A “shortage” was described as having less merchandise on the truck at the time of an ending inventory than was called for in the consigned account.

In addition to his consigned account Lotz . also had a personal account with the company. Based on the mentioned reports, the company computed withholding and social security taxes each month and debited them to his personal account. Also debited against his personal account were such items as truck insurance and shortages. This account was paid by Lotz to the company each month.

Turning to the overage dispute, Joe Lambert, vice president of appellant until April 4, 1962, testified there were 44 sales routes with an equal number of salesmen, including Lotz. These salesmen were paid by the salesman withholding from the sales price what he earned and turning the balance of it to the company’s auditing department. However, these salesmen, including Lotz, were “not necessarily” instructed to take out their full commission. It was permissible for the salesman to take less than the commission actually resulting from a particular sale. As Joe Lambert phrased it, “If they’re smart salesmen they take less.” * * * “In other words, (the weekly sales report) shows his commission, shows his cost, what he is supposed to turn in.” * * * “However, your smart operator always left a few dollars in there as a cushion, we called it, to build up an overage * * Joe Lambert stated that if a salesman came up short the salesman had to make it up by paying the company that amount of money. “But if he come (sic) up short a second time then he’s laid off.” Lambert testified he knew Lotz on occasions during the two periods of time in question took less than his commissions. Lambert gave several examples of this, and stated Lotz had told him of several particular instances he did not draw his full commission but was leaving it as a cushion.

The company generally knew of the “overage” practice by Lotz and the other salesmen and not only did not object to it but encouraged it. Lambert was asked, “Q. Were those overages paid by the company? A. Right. Q. Was it the custom and practice of the company to pay overages? A. Yes.”

Lotz’s testimony was in accord with that of Joe Lambert. Lotz stated that Jim Lambert, president of appellant company, and the brother of Joe Lambert, advised him to build up an overage so that he could never be checked short; that Jim Lambert told him, “It would come in to you in a lump sum you could do something with.” Lotz testified that during the two periods of time in question he did not report or put all of his commissions down on his daily reports because he was trying to build up an overage. He gave several example transactions in which he engaged during the two periods of time in question which resulted in overages. With reference to the two overages he stated, “I didn’t always pull my commissions.” * * * “What is short (commissions not taken) is for overage that was lying there for me at the time of this inventory.” Lotz testified the two overages were caused by “Nothing more than overage on commissions that I hadn’t pulled in twenty-seven months.”

Looking to Lotz’s past experience with overages and shortages, on May 2, 1958, an ending inventory taken by the company showed an $824.85 shortage. The company charged this to Lotz’s personal ac-. count and he paid it. Again on March 31, 1961, an ending inventory showed a shortage of $425.48 which Lotz paid the company.

On August 27, 1960, an ending inventory was taken by the company on Lotz’s truck and this inventory showed an overage of $2,262.20. The period of time involved in the accrual of this overage is from May 2, 1958, to August 27, 1960. The company refused Lotz’s request he be paid that sum, taking the position “there was error” although some fifteen rechecks by the company failed to disclose any error. Similarly, an ending inventory taken by the company on Lotz’s truck on February 26, 1962, showed an overage of $154.43, which after adjustment on Lotz’s personal account, left a net overage of $80.78. The period of time involved in the accrual of this overage is from March 26, 1961, to February 26, 1962. The company also refused to pay Lotz this overage although requested to do so. It is these two overages which are the subject of the first count of Lotz’s suit.

The company contends Lotz’s overages, could have resulted not from true overages, but from mistake such as (a) if merchandise from the company went on Lotz’s truck for which no invoice was made out; (b) if merchandise went on the truck and Lotz got both copies of the invoice, (c) if merchandise was invoiced to another salesman but by mistake got on Lotz’s truck; (d) if another salesman returned merchandise but by company mistake Lotz was-credited with the return; (e) if the company erroneously credited Lotz with another salesman’s cash deposit; (f) if an item was incorrectly invoiced as to price to Lotz or if Lotz traded a customer merchandise in a manner that resulted in Lotz’s retaining more merchandise than he disposed of. However, there is no evidence that any of these “could have” transactions ever occurred to Lotz. On the contrary, Lotz denied that they occurred to him or-to his account. It is noteworthy that the-converse of most of the “could have” transactions would result in shortages, as, for example, if Lotz returned merchandise but the company mistakenly credited another salesman’s account with the returned merchandise.

We are of the view that under the evidence the probability and the reasonable inference is that the two overages resulted from the deliberate efforts of Lotz to build overages during the periods of time in question, as he and Joe Lambert testified.

While Lotz did not particularize the various transactions that resulted in the overages, he testified he intentionally engaged in numerous transactions resulting in overages over the mentioned periods of time and there is no other evidence to explain how the two overages (the amount of which is conceded) resulted. This evi dence, corroborated at least to some extent by that of Joe Lambert, together with the other evidence concerning the overage question is sufficient substantial evidence to support that portion of the judgment, and is not merely speculation, conjecture or surmise, as appellant contends. It is the rule that in. passing on the sufficiency of the evidence to make a case for plaintiff, the plaintiff’s evidence is taken as true, together with all reasonable inferences that can be drawn therefrom and any evidence offered by the defendant that supports plaintiff’s case. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950. In accordance with the rule, we conclude the trial court did not err in overruling appellant company’s motion for a directed verdict at the close of all the evidence.

Appellant had no written rules or written contract applicable to its salesman. As mentioned, it held its salesmen, including Lotz, responsible for all shortages. Its custom was to pay them for overages. As Jim Lambert told Lotz, “It would come in to you in a lump sum you could do something with.” The evidence supports a finding and we do find that the payment of overages to the salesmen was the understanding under which both Lotz and the company operated and as such was a part of the contract of employment between Lotz and the company. It was the duty of the company to credit Lotz with the two overages and to pay him for them if they were not offset by debits on his account. Our conclusion is that the trial court’s finding and judgment on that portion of Count I of the petition in favor of Lotz for the overages is correct and is in accordance with the credible evidence.

Turning to the other item of Count I, the alleged $578.66 for overcharge for truck rental, the evidence discloses that in September, 1952, the company provided a 1951 Chevrolet truck to Lotz. According to Lotz, “ * * * at that time (September, 1952) I leased a truck as I recall.” * * * “I didn’t buy the truck until ’54.” * * * “I paid on a lease basis of $25.00 a week.” The actual transaction was that the company bought and paid for the 1951 truck, kept title to it, and charged Lotz’s personal account with the purchase price plus interest thereon. At the end of eleven months Lotz had paid all owed on his truck account, and he continued to use and drive the truck until about March, 1961. At that time, with Lotz’s permission, the company disposed of the old truck, credited his personal account with the $200.00 it received on selling it, and purchased and paid $2,970.00, plus sales tax on a new truck. The company took title to this new truck, retained the title certificate, and never assigned title to it to Lotz. It charged Lotz’s personal account with the $2,970.00 purchase price and sales tax, plus 7% interest thereon. Thereafter, Lotz regularly made payments in varying sums on the truck account until February 24, 1962, when he was in the process of being hospitalized. The truck was then about 10 months old and had 10,000 miles on it. At that time Lotz’s truck account showed $2,065.95 unpaid on the $2,970.00 purchase price. This, according to the company’s figures ($2,-970 - 2,065.95 = 909.05) (sic) meant Lotz had paid $909.05 of the truck purchase price. To this figure was added $148.46 interest Lotz had been charged in 1962 ($909.05 + 148.46 = 1,057.51). On June 12, 1962, when Lotz endeavored to return to work from his hospitalization, Jim Lambert refused to permit him to work and undertook to discuss the truck account with him. Lambert prepared a memorandum (Respondent’s Exhibit 17) showing the above truck account figures and also showing: “Truck Rental March 1961 to February 1962 - 11 months @ $60.00 — $660.00.” On the memorandum Lambert subtracted the $660.00 as “truck rental” owed the company by Lotz from the mentioned $1,057.51 Lotz had paid in on the truck account leaving a balance of $397.51 in Lotz’s favor ($1,057.51 -660.00 = 397.51). Lambert offered to pay Lotz the mentioned $397.51 to settle the truck account

It is the company’s position that the truck arrangement with Lotz was that the company merely purchased the truck for Lotz and that there was no leasing involved. However, the company took title to the truck from the seller and Lotz was never offered and never received title to any truck at any time. For a sale of the truck to Lotz to have taken place as appellant now contends, Lotz would have had to receive the title to it from the dealer or have had the certificate of title to it properly assigned to him by appellant. Section 301.210 RSMo 1959, V.A.M.S.; Still v. Travelers Indem. Co., Mo.Sup., 374 S.W.2d 95; Sabella v. American Indem. Co., Mo.Sup., 372 S.W.2d 36. As stated in Allstate Ins. Co. v. Hartford Accident & Indem. Co., Mo.App., 311 S.W.2d 41, loc. cit. 47, concerning the delivery of a motor vehicle without delivery of the certificate of title: “If we regard it as an executory contract to complete a sale in the future (as we think we must so view it, because we will not presume that the parties intended to do an illegal and unlawful act), then the user of the car pending completion was by consent and permission of the seller * * Following the same reasoning, we find that appellant and Lotz entered into an oral executory contract to complete a sale in the future; that because Lotz’s employment ceased the executory contract was terminated by mutual consent of the parties and by such mutual consent was treated as a lease of the truck by the company to Lotz. The company, through its president Jim Lambert, determined that a fair monthly lease rate was $60.00 per month for the eleven months, and based on that determination found it owed Lotz a balance of $397.51. Under such circumstances, and absent any complaint from Lotz, we are reluctant to disturb that determination and we accept it as supported by the evidence.

Appellant’s final contention is that there is no competent substantial evidence to support the trial court’s finding that Lotz was “discharged” by appellant on June 12, 1962, and that Lotz was thereby entitled to 60 days’ wages totaling $900.00 by virtue of Section 290.110, RSMo 1959, V.A.M.S., and that the trial court found for the wrong party on this issue. Our examination of the evidence leads us to the conclusion that there is competent and substantial evidence to the effect that Lotz was discharged by appellant company on June 12, 1962, as he contends and as the trial court found.

However, there remains the question of the applicability of Section 290.110 RSMo 1959, V.A.M.S. to Lotz’s claim for his “overages” or commissions. The trial court granted Lotz the $900.00 on the basis his income tax returns for the years he worked for appellant divided by the number of months he worked showed his average monthly compensation was over $450.00 and that under the provisions of Section 290.-110, as a discharged employee whose written request of July 31, 1962, for wages owed had been denied, he was entitled to that sum.

Section 290.110, as it existed in 1962,. provided in part that “Whenever any corporation * * * shall discharge, with or without cause, or refuse to further employ any servant or employee thereof, the unpaid wages * :|: * then earned at the contract rate (within 7 days of a written request therefor) * * * as a penalty for such nonpayment the wages * * * shall continue from the date of the dis— charge or refusal to further employ, at the same rate until paid * * * (but not to exceed 60 days unless an action therefor shall be commenced within that time).”

The word “wages” has upon occasion been broadly defined as compensation for services rendered by an employee to his employer including commissions earned in selling the employer’s goods. See, 44A. Words and Phrases, Wages, pages 67-71; Webster’s Third International Dictionary (Unabridged), page 2568; State v. Weatherby, Mo.Sup., 168 S.W.2d 1048, 1049. However, the statute we are construing is punitive in nature and must be strictly construed. It refers to wages “earned at the contract rate”. Here there is no rate for commissions set by contract. On the contrary Lotz’s commissions varied considerably and at his will. In the ordinary transaction he sold for any sum he could obtain up to the catalogue price. In some instances when he was not able to sell at the catalogue price because of unusual competition, the company at its option gave Lotz a quantity “discount” so as to help offset the reduced price. On occasion Lotz would take back merchandise from a customer if the customer had difficulty “moving” (selling) it and Lotz would “give him something else, take it out and resell it.” In some instances he traded appellant’s goods for other goods not belonging to appellant. His remuneration consisted of his net gain between the cost to him of appellant’s items and the price he obtained for the traded for items which had no catalogue price and which he sold for any price he could get. These variable transactions resulted in commissions or overages that were not wages or compensation “earned at the contract rate”. We hold that Lotz’s claim for commissions or “overages” is not within the purview or intendment of Section 290.-110, that he is not entitled to any recovery under Count II, and that the trial court erred in granting him $900.00 thereunder. Having so ruled it is unnecessary to determine if $450.00 per month is the “same rate” at which he was being paid when discharged, or whether the written demand on July 31, 1962, for unpaid wages was timely-

Accordingly, we approve that part of the judgment which concerns Count I, and we hold that the judgment entered on Count II is erroneous and should have been for appellant. In order that the trial court may enter a new judgment in accordance with this opinion, we reverse the judgment and remand the cause.

All concur.

BROADDUS, J., not participating.

      . Joe Lambert, former vice president of appellant company, testified the company held title to all trucks delivered to and used by route salesmen, and that Lotz had never held title to any of the trucks he used.

      . “It shall be unlawful for any person to buy or sell in this state any motor vehicle or trailer registered under the laws of this state, unless at the time of the delivery thereof, there shall pass between the parties such certificate of ownership with an assignment thereof, as herein provided, and the sale of any motor vehicle or trailer registered under the laws of this state, without the assignment of such certificate of ownership, shall be fraudulent and void.”

      . In 1963 our legislature amended Section 290.110 by adding a new sentence making it inapplicable “in the case of an employee whose remuneration for work is based primarily on commissions * *


author: BROADDUS, Presiding Judge.

text:
    Paul BROMLEY, pro ami, Appellant, v. Robert Dean McGINNESS, Respondent.
    No. 24075.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.

      Merrill M. Steeb, Downs & Pierce, St. Joseph, for appellant.
    Price Shoemaker and Elmer E. Reital, St. Joseph, for respondent.
   BROADDUS, Presiding Judge.

This is a suit for damages for personal injuries sustained by a five-year-old boy when he collided with an automobile on March 19, 1963. The jury, returned a verdict in favor of defendant and plaintiff has appealed.

The accident occurred shortly after 5 :00 p. m. in the twenty-four hundred block on South Twelfth Street in St. Joseph, Missouri. South Twelfth Street runs north and south. At the place of the accident it is 30 feet wide. It has a concrete surface and there is no median line dividing the street. There is no intersection dividing* the twenty-three hundred and the twenty-four hundred block on South Twelfth. There are vacant lots on each side of the street where children in the neighborhood play.

Paul Bromley, plaintiff, lived with his mother at 2430 South Twelfth Street. This is on the west side of the street. His parents were divorced and he was in the custody of his mother, Nancy Carol Brom-ley. Mrs. Bromley was employed and Paul stayed with his grandmother while his mother was working. On the afternoon of the accident his grandmother had returned him to his home about 3:00 p. m.

The weather was warm and the sun was shining. Later in the afternoon, Paul had gone outside to play. He had been playing on his side of the street, riding his bicycle up and down the sidewalk when he crossed over to the east side of the street where Bruce Crawford, age 14 had been playing with a younger sister, Connie, age 13, and brother Bobbie, age 11.

The Crawfords lived at 2415 South Twelfth Street which is on the east side of the street. The children had been sitting on the grass against the wall and near a tree. They had been looking south and Paul had his back to the traffic coming from the north. Paul’s mother called to him and he turned and started across the street.

On the date of the accident defendant Robert McGinness lived at 2220 South Eleventh Street. He had returned home from work and was on his way to get something to eat. He was driving his 1959 Oldsmobile. From Eleventh Street he proceeded east on Hickory Street to Twelfth Street where he had to stop, tie then made a right turn and proceeded south on Twelfth Street. He was traveling on his own side of the street and had traveled about a block and a half when the accident occurred.

As defendant McGinness approached the scene of the accident, he was driving about 20 miles per hour. He first noticed some children standing in the street when he was about 10 feet from them. They were ahead of him and to his left standing about 3 feet from the east curb. When defendant first saw the children he let up on the footfeed of the automobile but still kept his foot on the gas pedal. He did this because the children had their backs toward him and he was afraid they might turn and run in front of him. He did not apply his brakes nor did he sound his horn or otherwise warn of his approach.

When defendant was approximately 10, 12 or IS feet from the children, Paul Brom-ley turned and ran across the street. He traveled about 10 feet before striking the automobile. When plaintiff turned and started across the street, Mr. McGinness applied his brakes and swerved to the right. When asked: “You didn’t sound your horn ?” defendant answered, “I didn’t have a chance.” Paul struck the left front door of the McGinness automobile. Defendant immediately stopped his automobile and got out. Paul was lying about even with the rear bumper and out aways from it in the middle of the street.

Defendant was familiar with the neighborhood. He saw the children when he was 40 feet from them. He had a child of his own and knew children playing in the street are unpredictable; that the sight of children in the area was a warning to be careful. Defendant’s automobile was in ■good mechanical condition. It was equipped with two sets of brakes which were working properly. The horn was also in .good working condition.

Plaintiff’s sole contention here relates to the giving of Instruction No. 4 on behalf of defendant. It reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that the defendant Robert Dean McGinness was not guilty of negligence in failing to anticipate that plaintiff would run into his car and in failing to sound a warning by horn then your verdict must be for defendant.”

At plaintiff’s request the Court gave Instruction No. 1. It reads as follows:

“The Court instructs the jury that if you find and believe from the evidence that on March 19, 1963, the defendant was operating his automobile in a southerly direction along and upon South 12th Street in the City of St. Joseph, Missouri, and that as he approached that place on South 12th Street where the occurrence in evidence happened, the defendant saw the plaintiff, a minor boy, age five years, standing in the street about three feet from the east curb with his back to defendant’s approaching automobile, if you so find, and if you further find and believe from the evidence that at the time the defendant first saw plaintiff, defendant’s automobile was approximately forty feet north of plaintiff and traveling at a speed of approximately 20 miles per hour, and that defendant knew or should have known in the exercise of the highest degree of care that plaintiff, a child of tender years, was likely to run in the direction of defendant’s approaching automobile and to thereby collide with the defendant’s automobile, if you so find, and if you further find and believe from the evidence that after the defendant first saw plaintiff he failed to sound his horn to warn plaintiff of defendant’s approaching automobile, if you so find, and if you further find and believe from the evidence that plaintiff attempted to cross South Twelfth Street from where he was standing in said street and collided with defendant’s automobile, if you so find, and that by reason of the defendant’s failure to warn the plaintiff of his approaching automobile, the defendant failed to exercise the highest degree of care and was thereby negligent, if you so find, and if you further find • that such negligence directly caused the plaintiff to collide with defendant’s automobile and to be injured, then if you so find, your verdict should be in favor of the plaintiff and against the defendant.” (Emphasis ours.)

As is to be seen, plaintiff’s verdict directing instruction hypothesizes the factual situation as follows:

“ * * * and that defendant knew or should have known, in the exercise of the highest degree of care that the plaintiff, a child of tender years, was likely to run in the direction of defendant’s approaching automobile and defendant failed to sound his horn to warn plaintiff.”

The above quotation contains the two essential elements plaintiff submitted for recovery. Instruction No. 4 is an exact converse of these two elements, that is, to know that a child was likely to run into defendant’s automobile and to warn plaintiff by horn. Plaintiff does not criticize the language of the instruction and concedes that it is a converse instruction.

Plaintiff asserts that the instruction is prejudicially erroneous because it is contrary to the evidence and is not supported by the evidence. Plaintiff’s brief contains authorities to the effect that an instruction not supported by the evidence is erroneous. However, the instructions involved in these cases are not converse instructions and have no application to the instant situation.

There is no set form for what is referred to as a converse instruction. A defendant can submit either the exact converse of plaintiff’s verdict-directing instruction or the exact converse of any essential element of such instruction. Liebow v. Jones Store Co., 303 S.W.2d 660, 662, Mo.Sup. And the rule is equally well settled that a true converse instruction, such as the one here involved, does not need testimony to support it. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464. The contention lacks merit.

The judgment is affirmed.

All concur.


author: DOERNER, Commissioner.

text:
    Robert J. STOFFEL, (Plaintiff) Appellant, v. MAYFAIR-LENNOX HOTELS, INC., a Corporation, (Defendant) Respondent.
    No. 31851.
    St. Louis Court of Appeals. Missouri.
    Feb. 16, 1965.

      Rader & Love, Chester A. Love, Clayton,, for (plaintiff) appellant.
    Grand, Peper & Martin, Robert O. Het-lage, St. Louis, for (defendant) respondent..
   DOERNER, Commissioner.

Plaintiff, a landscape architect, brought this action to recover the sum of $2500 for services claimed to have been rendered to-the defendant. Defendant filed a motion for summary judgment, which the trial court sustained, and plaintiff appealed.

Plaintiff’s first amended petition contained' two counts. In the interest of clarity we-will consider separately the appeal as it relates to each count. In Count I plaintiff alleged that defendant was the owner of a described tract of land in St. Louis County-whereon it was building a hotel facility;, that in that connection defendant employed Clifford R. Fields and Associates as architects “to design the said hotel building and do such other related work as is connected therewith”; that the Fields’ firm “ * * as agents, servants and employees” of the-defendant “* * * did engage the services of the plaintiff for the purpose of designing and laying out a certain landscape plan in connection with the construction of the said hotel facility”; that pursuant thereto plaintiff rendered certain services, which were described at length; that “the plaintiff rendered these services to the defendant between the 1st day of March, 1963, and the 19th day of April, 1963”; and that the reasonable value of plaintiff’s services were $2500, for which demand had been made and payment refused. The prayer was for judgment in that sum, together with costs.

So far as the record before us shows, the only pleading filed by defendant was its motion for summary judgment.

As pointed out in Cooper v. Finke, Mo., 376 S.W.2d 225, 229, a summary judgment, as its name indicates, is an extreme and drastic remedy and great care should be exercised in utilizing the procedure. It may be rendered when, but only when, the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of a material fact and that the moving party is entitled to a judgment as a matter of law. Civil Rule 74.04(c), V.A.M.R.; Swink v. Swink, Mo., 367 S.W.2d 575; Brown v. Prudential Insurance Co. of America, Mo.App., 375 S.W.2d 623. The burden of establishing the nonexistence of any genuine issue of a material fact is on the moving party. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318; Sprague v. Vogt, 8th Cir., 150 F.2d 795. The proof upon which he relies must be “unassailable proof.” Civil Rule 74.04(h), V.A.M.R.; Cooper v. Finke, supra; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458. And where, as here, plaintiff appeals from a judgment summarily granted defendant we must view the record in the light most favorable to plaintiff and give him the benefit of every doubt. Cooper v. Finke, supra; Poller v. Columbia Broadcasting System, Inc., supra; Walling v. Fairmont Creamery Co., supra.

Prior to the hearing on the motion plaintiff’s deposition had been taken by defendant and was on file. Defendant maintains that the summary judgment should be affirmed because plaintiff’s testimony therein conclusively established as a matter of law that any services performed by plaintiff were undertaken by him as a commission salesman for Westover Farms Landscaping Co., in the hope of selling planting services and material, and not as a landscape architect seeking direct compensation. In his deposition plaintiff described himself as a self-employed landscape architect, with his office in the home of his parents, where he resided. He testified that except for one fee of $50, his entire income for the years 1961 to and including 1963 to date was derived from commissions paid by three nursery companies, principally the, Westover Company, on nursery stock sold by such companies through his landscaping. As plaintiff put it, “As I told you I am self-employed. I obtain the jobs myself, and when I see fit to whom I allocate various contracts (sic). * * * I can entertain bids from other nurseries through my landscaping.” Of course, the important factor is not what plaintiff did in general, but what was done in this instance. On that score plaintiff testified that having learned that Clifford R. Fields and Associates was the architect for defendant’s proj ect he wrote a letter to that . firm in July, 1962 “* * * requesting to be the landscape architect for the Mayfair-Len-nox motel, Motor Hotel.” He could not recall the response he received other than that he was told to call Goldman in November. Plaintiff testified that in November, 1962, “I called Mr. Goldman long distance in Mount Vernon and discussed the possibility of me being the landscape architect for the Mayfair-Lennox Motel, Motor hotel. He instructed me that he needed someone with my knowledge and that he would be willing to hire me as a landscape architect for a ■ certain fee, and I agreed to this situation.” Regarding the amount of his compensation, plaintiff said that Goldman “ * * * specified he would pay the running rate,” which plaintiff stated in another part of his deposition was $10 to $15 per hour.

To negate the effect of this testimony defendant points to another part of plaintiff’s deposition in which he said that around the first week in March, 1963, about the same time plaintiff was told to start to work on the landscape plan, Goldman came to the Westover Company’s office “ * * * and stated rather emphatically he wanted West-over Landscaping to do all the work (supplying and planting the nursery stock) because of their quality of material and quality of workmanship.” Plaintiff further related that until April 18, 1963 he did not know that Goldman had asked for bids for the furnishing and planting of the nursery material; that until that date he had assumed that the Westover Company would be given the contract for such work, and if it had he would have received the usual commission of 15% from Westover; that in that event he did not expect to make an additional charge for his services; and that he assisted Mr. Meyer, president of Westover, in preparing its bid. He said that he delivered Westover’s bid to Goldman on April 19, 1963, and at the same time attempted to submit to Goldman his own bill for $2500 for his services, which Goldman refused to accept. At another part of his deposition plaintiff was asked:

"Q. Did you have any written contract for the services to be performed ?
“A. None.
“Q. Did you have any discussion with Mr. Goldman concerning the fee you were to receive or the fact you- were making a separate charge at any time prior to April 19, 1963?
“A. No.
“Q. The first discussion you had with Mr. Goldman concerning your fee or the basis upon which you were to be paid was April, 1963; is that correct ?
“A. Yes, sir.”

In addition to plaintiff’s deposition there are also in the record two affidavits filed by defendant in support of its motion for summary judgment, to which reference will subsequently be made. Neither sheds any light on the question of whether plaintiff was employed as a landscape architect, or whether his status was that of a commission salesman for Westover. However, plaintiff also filed an affidavit on his own behalf, and stated in part, “ * * * that the said Clifford R. Fields and Associates employed the plaintiff to do the work described in his petition.”

Viewing the record in the light most favorable to the plaintiff and giving him the benefit of every doubt, as the foregoing authorities hold must be done, we do not believe it can be said as a matter of law that plaintiff’s testimony conclusively established that the services he rendered were performed solely and only as a commission salesman for the Westover Company. Plaintiff testified positively and unequivocally to his initial employment by Goldman as a landscape architect at the customary rate for such services. The fact that he subsequently expected to obtain his compensation in the form of the usual commission from Westover, based on Goldman’s assurance that he wanted Westover to be given the contract for furnishing and planting the nursery stock, merely showed that in that event plaintiff did not intend to hold Goldman to his agreement to pay a separate fee. But so far as plaintiff’s testimony shows, his intention was never communicated to Goldman, and there is no other evidence in the record that the original contract of employment was ever can-celled by mutual consent. And the record does show that when plaintiff first learned that Goldman was taking bids he immediately submitted a bill for the services which he had rendered and which, his testimony indicates, had been accepted by Goldman. As to his testimony ■ regarding the absence of any discussion with defendant or Goldman prior to April 19, 1963, we interpret his statement to mean - that between the time of his initial employment in November, 1963, and the time when he learned that Goldman was talcing bids, he did not initiate any discussion with Goldman concerning his separate fee or the basis upon which he was to be paid. Such lack of discussion would, of course, accord with his unexpressed intention to look to Westover for a commission, rather than to Goldman or defendant for a separate fee, based upon Goldman’s emphatic declaration that he wanted Westover to furnish and plant the nursery material.

Defendant also contends that the summary judgment as to Count I of plaintiff’s petition should be affirmed because it was conclusively established as a matter of law that if Clifford R. Fields and Associates ■employed plaintiff it did not do so, did not purport to do so, and had no authority to do so as agent or on behalf of defendant. In support of this argument defendant relies primarily on the two affidavits filed with its motion, one by John C. Roberts, Jr., defendant’s Secretary-Treasurer, and the other by Clifford R. Fields of Clifford R. Fields and Associates. The affidavits compliment one another. Each affiant stated that on behalf of his firm he personally conducted negotiations with the other, and on behalf of his principal entered into “certain contract arrangements * * * ” for the performance by the Fields’ firm of “certain architectural services with respect to the design and construction of the Mayfair-Lennox Airport Inn” ; that he was personally familiar with all such contract arrangements; that * * * •there are no contractual arrangements under which Clifford R. Fields and Associates has been authorized to act as .agents, servants or employees of Mayfair-Lennox Hotels, Inc. * * * ”; and that "the Fields’ firm “ * * * has not been ■authorized by Mayfair-Lennox Hotels, Inc. to engage the services of Robert J. Stof-fel, or any other person, on behalf of Mayfair-Lennox Hotels, Inc.” Fields’ affidavit •contained the additional statement that the Fields’ firm “ * * * has not purported to engage the services of Robert J. Stoffel or any other person on behalf of Mayfair-Lennox Hotels, Inc.”

The creation of the relationship of principal and agent is contractural in nature, and can be created only by an agreement, express or implied. Brown v. Anthony Mfg. Co., Mo., 311 S.W.2d 23; State ex rel. Mountain Grove Creamery, Ice & Electric Co. v. Cox, 315 Mo. 619, 286 S.W. 368; State v. Cochran, 336 Mo. 649, 80 S.W.2d 182. It is apparent from the foregoing affidavits only that “ * * * certain contract arrangements * * * ” were entered into between the two firms for the performance of certain architectural services. Whether the contract was oral or in writing is not stated. In either event the contract itself would be the best evidence of its terms. All that the affidavits contain are the affiants’ conclusions of law, not statements of “ * * * such facts as would be admissible in evidence * * Civil Rule 74.04(e), V.A.M.R. Under corresponding Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., it is held that conclusions of law in affidavits are of no effect and are not sufficient to sustain a motion for summary judgment. Barron & Holtzoff, Federal Practice and Procedure, Vol. 3, Sec. 1237, pp. 164, 165; Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318; United States v. Britten, 3 Cir., 161 F.2d 921; G. D. Searle & Co. v. Chas. Pfizer & Co., 7 Cir., 231 F.2d 316. Such decisions are particularly persuasive in applying our rule. Cooper v. Finke, Mo., 376 S.W.2d 225. Before leaving the subject of conclusions we should add that we consider plaintiff’s affidavit that the Fields’ firm “ * * * had the apparent, if not actual, authority to bind * * * ” the defendant to be in the same category.

To a lesser extent defendant also relies on plaintiff’s deposition on the question of agency. In that connection plaintiff testified that he did not know whether there was a written contract between Clifford R. Fields and Associates and the defendant; and that the only basis for his allegation that the Fields’ firm was an agent, servant or employee of defendant was the fact that Clifford R. Fields and Associates was the architect for the defendant. As defendant states, that conclusion does not necessarily follow as a matter of law. But neither does it necessarily follow that because plaintiff’s personal reason for the allegation is based on that conclusion that other evidence, such as the contract between the defendant and the Fields’ firm, would not support the allegation. In short, we are of the opinion that defendant did not sustain its burden of showing by “unassailable proof” that as a matter of law the Fields’ firm was not defendant’s agent. Civil Rule 74.04(h), V.A.M.R. It follows that the summary judgment in favor of defendant on Count I cannot stand. Cooper v. Finke, supra.

Terming Count II an “alternative cause of action,” plaintiff incorporated therein by reference all of the foregoing allegations in Count I, and pleaded in addition that “ * * * the defendant was benefited by plaintiff’s work and did accept the benefits of the plaintiff’s work * * The prayer was for a judgment for $2500, and costs. To sustain the summary judgment on Count II defendant contends that “ * * * Even if plaintiff were able to prove these allegations, plaintiff would not be entitled to judgment because the allegations are insufficient to sustain a cause of action. Since plaintiff could not obtain judgment upon proof of all the facts alleged, defendant was entitled to a summary judgment on Count II of plaintiff’s petition and the summary judgment should be affirmed.” Thus defendant would have us treat its motion for summary judgment as a motion to dismiss for failure to state a claim upon which relief can be granted. Civil Rule 55.33, V.A.M.R. But as was pointed out in Cooper v. Finke, Mo., 376 S.W.2d 225, 230: “* * * The trial court did not rule the sufficiency of the petition and there is no occasion for us to do so. The two procedures have different attributes. * * * ” And different results follow, for if plaintiff’s initial petition is found to be insufficient it should not be summarily dismissed with prejudice without giving plaintiff an opportunity to amend. Civil Rule 55.53, V.A.M.R.; Burke v. City of St. Louis, Mo., 349 S.W.2d 930. We must confess, however, that since plaintiff in explanation of the basis of his cause of action quotes from both Bennett v. Adams, Mo.App., 362 S.W.2d 277 and 3 Amer.Jur.2d, Agency, Sec. 175, which to our mind state different theories of recovery, we are not clear as to the correct basis of the cause of action attempted to be pleaded in Count II.

Defendant further contends that “ * * * Plaintiff alleged that he performed certain landscape architectural services for Clifford R. Fields & Associates * * * ” and proceeds to argue that plaintiff’s allegations and statements demonstrate that the services plaintiff performed were rendered to the Fields’ firm, not to defendant. Defendant is mistaken. What plaintiff alleged, first of all, was that the Fields’ firm was the agent of defendant, and that as such it engaged plaintiff to design a landscape plan for defendant’s hotel facility; that the “plaintiff rendered these services to the defendant (emphasis supplied) * * and that defendant accepted and was benefited by plaintiff’s labors. As has been discussed, defendant has not shown by unassailable proof that the Fields’ firm was not its agent, or, if it was, that it exceeded its authority in engaging the services of plaintiff on behalf of defendant. Nor, as plaintiff points out, has the defendant denied by answer or affidavit the allegations in plaintiff’s petition, and the statement in plaintiff’s affidavit, that defendant accepted the benefits of plaintiff’s labor. If on a trial plaintiff can adduce proof to sustain the allegations in Count II it would seem that he would make a prima facie case under the principles set forth in 3 Amer.Jur.2d, Sec. 175. In any event, whatever may be correct as to plaintiff’s theory of recovery, defendant’s proof does not “ * * * show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. * * ” Brown v. Prudential Insurance Co. of America, Mo.App., 375 S.W.2d 623, 628. We are therefore constrained to hold that on the record before us the summary judgment in favor of defendant on Count II should not have been rendered.

For the reasons stated the judgment should be reversed and the cause remanded. The Commissioner so recommends.

PER CURIAM:

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

Accordingly, judgment is reversed and the cause remanded.

RUDDY, P. J., ANDERSON, J., and FRANK D. CONNETT, Jr., Special Judge, concur.