author: DOERNER, Commissioner.

text:
    Thomas Arthur SMITH and Josephine Marie Smith, Plaintiffs-Respondents, v. R. G. ALDRIDGE, d/b/a Aldridge Construction Company, Defendant-Appellant.
    No. 30776.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 15, 1962.

      Carstarphen & Harvey, Harr)^ Carstar-phen, Hannibal, for defendant-appellant.
    Rendlen & Rendlen, Hannibal, Mcllroy & Millan, James Millan, John M. Mcllroy, Bowling Green, for plaintiffs-respondents.
   DOERNER, Commissioner.

This case recently came to the writer by reassignment. Plaintiffs, husband and wife, were the owners of a house and lot in Hannibal, Missouri, numbered 3412 Navajo Street. Defendant, a contractor, constructed a part of Highway 36 over Navajo Street, in front of and adjoining plaintiffs’ property, during the. course of which defendant used explosives to remove rock and debris. The case was tried on plaintiffs’ second amended petition, which contained three counts. In Count I, plaintiffs sought recovery of $6,500 for actual damages to their improvements and land allegedly due to vibration and to rocks and debris being cast thereon by defendant’s blasting, as well as punitive damages of $10,000. In Counts II and III, plaintiffs Thomas Arthur Smith and Josephine Marie Smith prayed for damages of $1,000 and $5,000, respectively, for mental pain and anguish each claimed to have suffered by reason of the blasting. Verdict and judgment below was for plaintiffs on Count I for actual damages of $3,500; for defendant, on Count II; and for plaintiff Josephine Marie Smith for $1,300 on Count III. After his post-trial motions proved unavailing, defendant appealed.

Neither the contract between defendant and the State Highway Commission, nor the plans and specifications for the work to be done pursuant thereto, were introduced in evidence and hence are not before us. It appears from the record, however, that part of the work undertaken by defendant involved the making of a cut 350 feet wide and 35 feet deep through dirt and rock, on the right-of-way adjoining plaintiffs' property. Plaintiffs introduced substantial evidence that the blasts set off by defendant occurred frequently during the months of January, February, March and April, 1959, and at varying times during the day; that on occasion defendant would warn plaintiffs before the explosives were detonated, but that often no warning would be given; that in addition to the resulting noise and concussion, the blasts caused vibrations to occur which jarred and shosk plaintiffs’ home; that the blasts also caused rocks, some as large as a football, and other debris to be thrown onto the plaintiffs’ property and against the improvements thereon; and that the damage to plaintiffs’ home and improvements resulting from the blasts included cracks in the ceiling, floors, walls and foundation, broken shingles and a trellis, holes through the garage roof and through the storm door and the front door, bricks knocked off the chimney, and the littering of plaintiffs’ land. Defendant’s evidence was that the amount of explosives used could not have caused any vibration sufficient to have shaken plaintiffs’ house and that any damage claimed to be due to such a cause was the result of poor construction of the structure. Defendant also introduced evidence that pole mats were used to prevent rocks and debris from being- thrown by the explosives, but its own evidence revealed, inferentially at least, that such means of prevention was not wholly successful, and plaintiffs showed that they were quite ineffectual. Additional facts will be stated in connection with the matters raised by defendant on appeal.

In his brief defendant has enumerated seven principal points relied on, each of which, in turn, is subdivided in from two to five subpoints. Faced with the task of reviewing this plethora of alleged error, it may be helpful to state at the outset some of the principles of law applicable to actions involving explosives. In this state “ * * * blasting is regarded as a work which one may lawfully do, providing he avoids injuring persons or property, and subject to his obligation to pay damages for any injury inflicted by his blasting. * * * ” Schaefer v. Frazier-Davis Const. Co., Mo.App., 125 S.W.2d 897, 898. The cases from other jurisdictions are not in harmony on the question of liability for property damage from concussion or vibration resulting from blasting. In some it is held that liability depends on whether the defendant was negligent. Booth v. Rome, W & O. T. R. Co., 140 N.Y. 267, 35 N.E. 592, 24 L.R.A. 105. In other states the rule of absolute liability is followed, and it is held that the defendant is liable for damage to the plaintiffs’ property caused by concussion or vibration, irrespective of negligence. Wendt v. Yant Const. Co., 125 Neb. 277, 249 N.W. 599; Watson v. Mississippi River Power Co., 174 Iowa 23, 156 N.W. 188, L.R.A.1916D, 101. Where, however, the injury to plaintiffs’ premises results from rocks and debris thrown thereon by the blasting, it is generally held, even in those states requiring negligence to support a recovery for concussion or vibration, that a trespass results for which there is liability, regardless of negligence. This distinction in such jurisdictions appears to be based on the historical difference between actions on the case and trespass, 20 A.L.R.2d 1372, and has been sharply criticized by many courts which have adopted the rule of absolute liability. Wendt v. Yant, supra; Watson v. Mississippi River Power Co., supra.

While there seems to have been some doubt on the part of the courts in the early cases in Missouri as to whether it was necessary to prove negligence to warrant a recovery for personal injuries from blasting, Hoffman v. Walsh, 117 Mo.App. 278, 93 S.W. 853; Knight v. Donnelly, 131 Mo.App. 152, 110 S.W. 687, from the first case in this state involving damages from vibration, Faust v. Pope, 132 Mo.App. 287, 111 S.W. 878, our appellate courts have uniformly held that “ * * * when damage to property is by vibration or concussion from blasting there is an invasion of the premises and liability irrespective of negligence quite as if the blasting had cast rocks or debris thereon. * * * ” Summers v. Tavern Rock Sand Co., Mo., 315 S.W.2d 201, 203. And see Stocker v. City of Richmond Heights, 235 Mo.App. 277, 132 S.W.2d 1116; Taylor v. Walsh, 193 Mo. App. 516, 186 S.W. 527; Johnson v. Kansas City Terminal R. Co., 182 Mo.App. 349, 170 S.W. 456.

With these rules in mind, we turn to an examination of the matters assigned as error by the defendant. Reviewing them in the chronological sequence in which they occurred, rather than in the order followed in the brief, the first matter for consideration is defendant’s complaint that the court erred in striking from his answer, on motion of plaintiff, what defendant denominates as his defense of “contractor-government immunity.” The allegations regarding the claimed defense of immunity are much too lengthy and verbose to be quoted herein. It is sufficient for our purpose to say that the substance of defendant’s plea, and the tenor of Tiis argument on appeal, is that the State Highway Commission would have been immune from any liability for the damage suffered by plaintiffs had it undertaken the construction of the highway; and that the immunity which the State Highway Commission would have enjoyed under such circumstances extended to the defendant in carrying out his work for the Commission. The premise that the State Highway Commission would not be subject to liability for the tortious acts of its agents and employees in constructing the highway may be conceded. Bush v. State Highway Commission of Missouri, 329 Mo. 843, 46 S.W.2d 854; Broyles v. State Highway Commission of Missouri, Mo.App., 48 S.W. 2d 78; Rector v. Tobin Construction Co., Mo.App., 351 S.W.2d 816. Those cases are based on the doctrine that the State of Missouri is not subject to tort liability without its consent, and that the State Highway Commission, as a subordinate branch of the executive department, is therefore immune. But the defendant is neither the State nor the State Highway Commission, and it does not follow as a matter of course that he is absolved from all liability merely because the work in which he was engaged was performed pursuant to a contract with the Commission.

In support of his claim of immunity defendant relies principally on the cases of Nelson v. McKenzie-Hague Co., 192 Minn. 180, 256 N.W. 96, 97 A.L.R. 196, and Pumphrey v. J. A. Jones Const. Co., 250 Iowa 559, 94 N.W.2d 737. When carefully considered it is apparent that neither case is in point. The cause of action in Nelson v. McKenzie-Hague Co., was predicated on a statute defining a private nuisance. As stated by the court, the precise point presented in Pumphrey v. J. A. Jones Const. Co., 94 N.W.2d 739, was:

“The narrow question before us is whether the independent contractor is entitled to share the immunity of the sovereign with which he has contracted if he carries out his operations in accordance with the terms of the agreement and without negligence, even though the procedures required by the contract and approved by the government may result in incidental damage to third persons. * * * ”

In the instant case defendant did not plead that his contract with the State Highway Commission made it mandatory upon him to use explosives. Nor did he allege that the manner in which he employed the explosives was in strict accordance with the terms of the contract or at the specific directions of the Commission’s engineer, with whose orders he was required to comply, as in Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924. All that defendant alleged in the instant case was that the use of explosives was “the only way known to man” to remove the rock, and that the blasting was done under the supervision and inspection of the authorities for the highway. At best this was but an allegation that the authorities permitted the use of explosives, not that they required it or directed the manner of its employment.

The freedom from liability which protects the State Highway Commission from liability for the tortious acts of its agents and servants does not exempt the individual agent or servant from legal responsibility for his misconduct. Rector v. Tobin Const. Co., Mo.App., 351 S.W.2d 816. Similarly, it was held in State ex rel. State Highway Commission v. Riggs, 226 Mo.App. 1053, 47 S.W.2d 178, that the contractor, and not the Commission, was responsible for damage to a septic tank resulting from the negligence of the contractor in blasting. . This accords with the general rule. 40 C.J.S. Highways § 212, p. 208. As stated in 43 Amer.Jur., Public Works and Contracts, Sec. 82, p. 825:

“Whatever immunity the state or its political subdivisions and other public bodies .may enjoy from liability for negligence in the performance of public work when the work is actually prosecuted by its agents and employees does not extend to private contractors who have contracted with public authorities for the construction of public work or public improvements, and such contractors are liable to third persons for injuries proximately resulting from negligence in the performance of the work contracted for. Liability in such case is based not upon the contract with the public authorities or upon a failure to perform the work in accordance with that contract but upon the contractor’s negligence and the tortious breach of duty imposed upon him by common law.”

In support of this rule see the later Iowa case of Monroe v. Razor Const. Co., 110 N.W.2d 250. If governmental immunity does not insulate from liability a contractor who negligently injures property, as the authorities hold, we see no valid reason why it should immunize a contractor when the damage to the property is caused by his unauthorized invasion or trespass through blasting. Scranton v. L. G. De Felice & Son Inc., 137 Conn. 580, 79 A.2d 600; Whitney v. Ralph Myers Contracting Corp., W.Va., 118 S.E.2d 622. We hold that the trial court did not err in striking from defendant’s answer the alleged defense of immunity.

In the course of the voir dire examination by plaintiffs’ counsel, and further questions by the court, venireman Brown indicated a doubt as to his qualifications to serve as a juror because his company, not named, had other claims pending arising out of defendant’s blasting, which from a subrogation standpoint might be affected by the outcome of the case on trial. Plaintiffs’ counsel then asked that the venireman be excused, and the court inquired of defendant’s counsel whether he had any objection. Defendant’s counsel replied: “Objection goes to the entire controversy; and we ask that the entire panel be discharged, and that it be declared a mistrial because of this controversy.” The court thereupon overruled the motion, and excused Brown. Defendant now complains on appeal that the court erred in refusing to discharge the panel because Brown’s statement that other claims were pending and would be affected by the instant case prejudiced the prospective jurors. We have some doubt that a motion to discharge the panel because of “this controversy,” in the light of Brown’s answers, is sufficient to encompass the alleged error now raised on appeal. In any event, the disqualification of an individual venireman for bias or the expression of an opinion is normally not a sufficient ground for a challenge of the entire panel. State v. Weidlich, Mo., 269 S.W.2d 69. The declaration of a mistrial and the quashing of the panel is largely a matter within the discretion of the trial court, because it is in a better position to gauge the effect on the panel of the matter claimed to be prejudicial. State v. Taylor, Mo., 324 S.W.2d 643, 76 A.L.R.2d 671; State v. Weidlich, supra; State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688. It cannot be said that the trial court abused its discretion in the instant case.

Defendant’s next contention concerns a deed, dated February 26, 1959, whereby in consideration of the sum of $1500 plaintiffs conveyed to the State Highway Commission their interest in Navajo Street, on which their property fronted and which was included in the right-of-way for the improvement of Highway 36. It was recited in the deed that the plaintiffs further granted to the Commission the right and privilege to alter and change the grade of said Navajo Street, and that plaintiffs received the $1,500 “as full compensation for any damage which may result to our property as a result in the changing of the grade of said street and that we shall not make any claim for any further compensation as a result of such change in grade.” Defendant argues that the consideration paid by the State Highway Commission for the deed was the equivalent of the payment of damages in a condemnation proceeding, and that the court therefore erred in not ruling as a matter of law “ * * * that the plaintiffs had been fully compensated for all consequential damages by reason of the deed * ⅜ *»> Defendant misconstrues the deed. Granting that the consideration paid by the State Highway Commission may have included the consequential damages to plaintiffs’ property resulting from the change of the grade of Navajo Street, the damages which plaintiffs seek to recover from defendant are not “consequential damages” as that term is employed in the law of eminent domain. Laclede Gas Co. v. Abrahamson, Mo., 296 S.W.2d 100, 61 A.L.R.2d 1286; State ex rel. N. W. Electric Power Cooperative, Inc. v. Waggoner, Mo.App., 319 S.W.2d 930. The damages claimed by plaintiffs were not for injuries which resulted from the change of grade per se, but for the tort committed by defendant in the course of building the highway. The deed did not release defendant from liability for such misconduct. State ex rel. State Highway Commission v. Riggs, supra; Chapman v. St. Louis Belt & Terminal R. Co., 240 Mo. 592, 144 S.W. 469.

Another assignment of error is that the court erred in overruling defendant’s motion for a directed verdict on Count I at the close of all the evidence. The argument advanced is that the cause of action pleaded by plaintiffs in that Count was for malicious, wilful and wanton acts of the defendant, and that there was no evidence that defendant’s acts were of that character. Defendant is mistaken in his interpretation of plaintiffs’ petition. What plaintiffs did in Count I was to first plead a cause of action based on defendant’s liability for the damage resulting from defendant’s blasting, irrespective of his negligence, in accordance with the rule announced in Summers v. Tavern Rock Sand Co., supra, and Schaefer v. Frazier-Davis Const. Co., supra, for which they prayed actual damages of $6,500. In the concluding paragraph of that Count they also alleged that the defendant’s acts in blasting were so wanton and malicious, and carried out with such a complete disregard of the consequences, known or which could have been known to defendant, that he should be penalized; and plaintiffs prayed for punitive damages of $10,000. There was an abundance of evidence to sustain plaintiffs’ claim that their property was damaged by the explosives used by defendant, and the court therefore did not err in overruling defendant’s motion. The question of whether there was sufficient evidence that the defendant acted maliciously, wilfully and wantonly is subsequently discussed, but as to Count I defendant can have no valid complaint on that score because the jury found the issue in his favor and did not return a verdict for punitive damages.

In Count III of the petition plaintiff Josephine Marie Smith alleged that defendant’s acts in blasting were done in a malicious, wanton and inhuman manner, causing her great worry about the safety of her children and herself, and mental pain and anguish. As to this Count, defendant contends that no cause of action was stated because in the absence of a physical injury there could be no recovery for mental pain and anguish. Defendant relies on the general rule, but ignores the exception to the rule. As stated in Trigg v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 147, 153, cited by defendant, “ * * * The general rule is that ‘pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult or inhumanity.’ * * * ” (Emphasis supplied.) A similar statement as to the general rule and the exception appears in Gambill v. White, Mo., 303 S.W.2d 41, 43. Under the exception to the general rule damages for mental pain and anguish have been allowed where the defendant’s misconduct was malicious, wilful or wanton, even though no physical injury occurred. Ackerman v. Thompson, 3S6 Mo. 558, 202 S.W. 2d 795; Crenshaw v. O’Connell, 235 Mo. App. 1085, 150 S.W.2d 489; Wilson v. St. Louis & S. F. R. Co., 160 Mo.App. 649, 142 S.W. 775; Voss v. Bolzenius, 147 Mo. App. 375, 128 S.W. 1.

Defendant also argues, in connection with Count III, that its motion for a directed verdict should have been sustained because there was no evidence that the defendant acted maliciously, wilfully or wantonly. Plaintiffs’ evidence was that the worst of the blasting occurred during the months of January, February, March and April, 1959, and that rocks and debris were thrown onto plaintiffs’ premises approximately 35 or 40 times. Records kept by the Resident Highway Engineer, Pace, disclosed that blasting had occurred on 53 days during that period, but the records did not reflect the number of blasts set off each day, nor the total for all of that period. Defendant was made fully aware that the explosions were showering plaintiffs’ property with rocks. That fact was discussed with defendant’s superintendent, Martin, by plaintiff Thomas Arthur Smith, by Pace, and by Meyer, the State Highway Project Engineer, and there was evidence that employees of defendant would police plaintiffs’ premises after some of the blasts. In fact, on one occasion plaintiff Smith complained to Martin that plaintiffs’ house was being torn down, and Martin acknowledged : “ * * * T know it. Every time I shoot I hit your house, * * * don’t know what’s wrong, but every time we shoot we hit your house.’ ”

Plaintiff Josephine Marie Smith testified that she talked to the defendant’s employees who picked up the larger rocks,, and showed them the damage that was-being done. When she expressed concern about her own safety an employee advised her it would be better if she moved out of the house. She stated that there was no-set pattern as to when the blasts would occur; that some would come every 15 or 20 minutes, while on other occasions a period of two hours would elapse. There was evidence that during the first half of the period no warnings were given and that during the last half warnings were given only at times. Mrs. Smith testified concerning the fear and anxiety she had for the safety of her children and herself, the strain and tension she suffered, and the effect on the children of being denied the use of the yard and of having to stay in the house. On one occasion when she was standing towards the back of the lot, she was struck by a small rock cast by the blasting. There was also evidence on the part of plaintiffs that the pole mats used to dampen the effects of the blasts became in a dilapidated condition and less effective, and that the defendant could have used smaller charges of explosives, which while more expensive would have caused less damage, and could have lessened the damage in other ways. The foregoing constituted ample evidence to submit to the jury the issue of whether defendant had acted maliciously, wilfully or wantonly, within the meaning of those terms, Brown v. Sloan’s Moving & Storage Co., Mo., 296 S.W.2d 20; Nichols v. Bresnahan, 357 Mo. 1126, 212 S.W.2d 570; Voss v. American Mut. Liability Insurance Co., Mo.App., 341 S.W.2d 270, and the court properly overruled defendant’s motion for a directed verdict.

Defendant’s next point is that the court erred in giving plaintiffs’ instruction No. 1, which defendant properly sets forth in the argument portion of his brief. Civil Rule 83.05(a), V.A.M.R. Complaint is made that the instruction did not follow Count I of plaintiffs’ petition in that the jury was not required to find that defendant’s conduct had been wilful and wanton. This is a further result of defendant’s misconception of the cause of action pleaded in Count I, already discussed. Instruction No. 1 related only to plaintiffs’ claim for actual damages, based on defendant’s blasting. The question of whether defendant had also acted maliciously, wilfully and wantonly was submitted in another instruction, and decided favorably to defendant.

The remaining assignments in defendant’s brief relate to the alleged error in giving plaintiffs’ instructions numbered 2, 3, 4 and 7, and the court’s refusal to give defendant’s offered instructions numbered 12, 14, 16, 17, 18 and 19. In disregard of Civil Rule 83.05(aj, defendant has neither set forth those instructions in the argument portion of his brief, nor has he paraphrased or quoted any portions which he questions. While not required to do so, Brown v. Thomas, Mo.App., 316 S.W.2d 234, we have nevertheless examined all of the instructions in the light of the criticism leveled at them by defendant, at least as best we understand defendant’s complaints. Most of the complaints made have been answered in the course of this opinion. We find no merit in the remainder.

Finding no error, it is the recommendation of the Commissioner that the judgment be affirmed.

PER CURIAM.

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

Accordingly, judgment is affirmed.

ANDERSON, P. J., and WOLFE, J., concur.

RUDDY, J., not participating.


source: Caselaw Access Project

author: HARRY A. HALL, Special Judge.

license: Public Domain

text:
    Anna M. LAWSON, (Plaintiff) Appellant, v. The VILLAGE OF HAZELWOOD and Lynn Haven Bowling Corporation, Inc. (Defendants) Respondents.
    No. 30885.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Motion to quash and set aside opinion and for Rehearing or to Transfer to Supreme Court Denied May 15, 1962.

      Edward J. Delworth and Wyne & Del-worth, Clayton, for appellant.
    Richard M. Stout, Francis R. Stout, and Kent E. Karohl, St. Louis, for Village of Hazelwood.
    William I. Rutherford and Lashly, Lashly & Miller, St. Louis, for Lynn Haven Bowling Corporation.
   HARRY A. HALL, Special Judge.

This is an action against the Village of Hazelwood and the Lynn Haven Bowling Corporation, Inc., for $10,000.00 in damages for personal injuries sustained by plaintiff when she fell over a stake placed by the Bowling Corporation on an unimproved portion of the Village’s right of way for Lynn Haven Lane, a public street in the village.

The trial court sustained the Village’s motion to dismiss plaintiff’s petition for failure to state a cause of action against it and sustained the Bowling Corporation’s motion for summary judgment upon the ground that plaintiff’s injuries were sustained in the course of her employment with the Bowling Corporation and that her exclusive remedy was under the Missouri Workmen’s Compensation statutes. Plaintiff duly appealed both rulings to this court.

The undisputed facts developed in the summary judgment proceedings are as follows : The Bowling Corporation operated a bowling alley in a large building centered on the north side of Lynn Haven Lane, with large parking areas on both the east and west sides of the building for the use of its patrons. The street right of way is SO feet wide with a 32-foot paved section in the center, leaving some nine feet of unimproved easement along its north side adjacent to the bowling alley property. A 6-foot sidewalk extended along the street pavement on the right of way easement from the west parking area to a point west of the center of the building, where it made a right angle turn north into the west front door of the building. A similar walk led from the east parking lot to the east front door of the building. The two sidewalks were not connected with each other, and the area between them (which extended from the paved portion of the street north across the unimproved right of way to the building) was a sodded area, around which the Bowling Corporation had placed a wire on wooden stakes about 12 inches high, next to the sidewalk, to protect the grass on both the Bowling Corporation’s property and the unimproved portion of the street right of way.

Plaintiff, who was employed by the Bowling Corporation in the snack bar, got off work about midnight and went out the west door and walked south on the sidewalk toward the street, intending to continue south across the street. She tripped over one of the stakes which had been placed beside the walk on the unimproved right of way adjacent to the paved portion of the street, receiving the injuries complained of.

It is conceded that plaintiff, as an employee of the Bowling Corporation, comes within the purview of the Workmen’s Compensation Act, Section 287.120 RSMo 1959, V.A.M.S., for accidental injury arising out of and in the course of her employment.

Our courts have not endeavored to give an all-embracing definition of the statutory phrase “arising out of and in the course of his employment”, but determine each case upon its own particular facts and circumstances. However, there must be some causal connection between the required working conditions and the resulting injury. An injury arises “in the course of his employment” where it occurs while an employee is reasonably fulfilling the duties of his employment or doing something necessarily incidental thereto, and at a place where he may reasonably be. Lunn v. Columbian Steel Tank Co., 364 Mo. 1241, 275 S.W.2d 298; Murphy v. Wells-Lamont-Smith Corp., Mo.App., 155 S.W.2d 284. As stated by this court in Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, 1. c. 489:

“As a general rule, an injury arises out of the employment when there exists between the injury and such employment a causal connection of greater or less tenacity; in other words, when the employment is in some way responsible for the injury. It is on this principle of industrial responsibility that the compensation acts find their theoretical and constitutional basis.”

Generally, an employee who has finished his work and is injured after he has left his employer’s premises is not covered by the Compensation Act, unless there are special circumstances creating a causal connection between his employment and his injury, or where the place of injury is so close to the employer’s premises that it might be reasonably considered as a part thereof. Murphy v. Wells-Lamont-Smith Corp., supra; Lunn v. Columbian Steel Tank Co., supra; Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 S.Ct. 221, 72 L.Ed. 507, 66 A.L.R. 1402.

We believe there was such a causal connection between plaintiff’s employment and her injuries as to bring her claim within thé Workmen’s Compensation Act.

The sidewalk plaintiff used began at the west door of the building and ended at the west parking lot. While it did extend along the street for a distance on the right of way, it did not connect with a similar walk extending from the east parking lot to the building’s east door. The area between the walks, including the 9-foot right of way adjoining the street pavement, had been appropriated by the Bowling Corporation, which had sodded the area and enclosed it with the stakes and wire for the purpose of preventing people from walking over it. Defendant also had placed flood lights in the area to light up its building. As constructed, the walks were primarily for the use of the Bowling Corporation, its patrons and employees, rather t'han the general public. In staking off the sodded area the defendant treated it as its own property, and to all outward appearances it was a part of the defendant’s premises. The hazard, if any, resulting from the stakes placed along the walk by the defendant, whether on its own property or on the unimproved right of way, was exactly the same, and it would be most incongruous for plaintiff’s injuries to be held compensable under the Compensation Act if she fell over a particular stake and non-compensable under the Act if by chance she fell over a similar stake a few feet distant.

The Compensation Act embraces all injuries received as a necessary incident to employment, and our courts, in effectuating the purposes of the Act, have agreed that injuries received while leaving the employer’s premises after the work is done comes within the coverage where it occurs on the employer’s premises, or in an area over which the employer has assumed control. See Murphy v. Wells-Lamont-Smith Corp., supra, where an employee while going to work was struck on the public sidewalk adjacent to the employer’s plant by a truck backing over the sidewalk towards the company’s shipping yard, the court saying, 155 S.W.2d 1. c. 287:

“When the employee reached that part of the sidewalk used for a drive-in and drive-out by the employer for its own benefit, she was there by virtue of her employment. The use of some mode of ingress and egress to and from her place of work was incidental to her work. It was reasonably necessary for her to use that sidewalk to get to the women’s entrance to enter the factory only a short distance away and immediately adjacent to the sidewalk. She was not there for her own pleasure nor upon any independent business of her own, as were members of the general public, if any, who may have been there at that time, but was there actually on the employer’s premises as a necessary prelude to engaging in the work she was employed to do.”

In Ott v. Consolidated Underwriters, Mo. App., 311 S.W.2d 52, plaintiff, who had just been employed, was injured as she was leaving the employer’s premises a few hours before she was to assume her regular duties. In holding that she was covered by the Compensation Act, the court said, 1. c. 56:

“It is well established by judicial decision that an employee who is within the coverage of the Workmen’s Compensation Act ordinarily remains under the coverage of that act while leaving the premises of his employer. Under such circumstances the act of leaving the employer’s premises after the work is done is considered a risk connected with the employment and is incidental to the employment. Murphy v. Wells-Lamont-Smith Corp., supra; Metting v. Lehr Construction Co., supra; Gardner v. Stout, 342 Mo. 1206, 119 S.W.2d 790.” [Metting v. Lehr Construction Co., 225 Mo.App. 1152, 32 S.W.2d 121.]

This rule was applied in the Lunn case where the employee had been requested to help save the employer’s property from an impending flood. Lunn left the employer’s plant as the flood waters approached and headed towards his car. He was last seen alive one and one-half blocks from the plant, and his body was found in that vicinity after the flood had subsided. The court held his death by drowning was within the Act as a result of the hazard created by the employer by employing him to work in an area in imminent danger of being flooded.

Plaintiff relies on Donzelot v. Park Drug Co., Mo.App., 239 S.W.2d 526, and Anderson v. Pickwick Hotel, Inc., Mo.App., 313 S.W.2d 39. In the former, plaintiff slipped and fell as she stepped from defendant’s building onto the public sidewalk, which, along with the other streets and sidewalks, was covered with ice and snow. This condition had prevailed generally throughout the city for several days. In the Anderson case, plaintiff slipped and fell in the vestibule of a bus waiting room under the control of the bus company, nowise connected with the hotel and over which the hotel had no control. In neither case was there any causal connection between the plaintiff’s injury and his employment, nor did the employer have any control over the conditions which caused the injury. In the instant case, the Bowling Corporation had appropriated the use of the sidewalk and sodded area for its own convenience and that of its patrons and employees, and it was directly responsible for the condition which caused plaintiff’s injury.

Under the facts herein the place where plaintiff was injured, for all practical purposes insofar as she was concerned, was a part of the Bowling Corporation premises and her injury is one arising out of and in the course of her employment within the meaning of the Workmen’s Compensation Act. The judgment of the trial court sustaining the motion of the Bowling Corporation for summary judgment without prejudice to plaintiff’s right to proceed under the Workmen’s Compensation Act was proper.

Plaintiff’s petition charged the Village with negligence in failing to remove the stake from the right of way without specifying whether it was on the paved or unimproved portion thereof. The court sustained the Village’s motion to dismiss March 2, 1960, a few days prior to the effective date of the new Rules of Civil Procedure, V.A.M.R., when the court, in ruling on the motion, was limited to objections appearing on the face of the petition. Section 509.300 RSMo 1959, V.A.M.S.; Pogue v. Smallen, Mo., 285 S.W.2d 915. This ruling was not final but merely interlocutory, since it did not dispose of all the parties, and it did not become a final appeal-able order until February 3, 1961, when the court entered a summary judgment against the plaintiff and in favor of the co-defendant Bowling Corporation, at which time plaintiff filed her appeal from both rulings. Adams v. Adams, Mo., 294 S.W.2d 18; Bauman v. Conrad, Mo.App., 342 S.W.2d 284; State ex rel. State Highway Comm. v. Hammel, Mo., 290 S.W.2d 113.

In this interim the record shows the parties by stipulation introduced plats and photographs which fix the location of the stake in the sodded area of the right of way easement which was not a part of the traveled portion of the street maintained by the Village. Plaintiff in her written statement, brief and argument on appeal agrees with such location and this court can consider such facts in passing on plaintiff’s appeal. In re Kelley’s Estate, 213 Mo.App. 492, 255 S.W. 1064; Politte v. Wall, Mo. App., 256 S.W.2d 283.

The record is undisputed that the Village of Hazelwood had not exercised any governmental function over the right of way area where plaintiff fell except to acquire the easement. Under the law, a city owns and controls the streets for the public use and has the primary and non-delegable duty to exercise ordinary care in keeping them in reasonably safe condition for travel. Burgess v. Kansas City, Mo.App., 242 S.W.2d 591; Benton v. St. Louis, 217 Mo. 687, 1. c. 700, 118 S.W. 418, 1. c. 421.

This duty, however, does not extend to that part of the right of way which has not been improved and which the public has not been invited to use either expressly or by implication. Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W. 2d 32; Hauck v. Kansas City Public Service, 239 Mo.App. 1092, 200 S.W.2d 608; Robinson v. Kansas City, 179 Mo.App. 211, 166 S.W. 343.

In the Carruthers case, plaintiff, a passenger in an automobile, was injured when the driver left the designated traveled portion of the street and drove over the curbing into a 20-foot parkway which divided the traffic lanes of the street. The court held the City was not liable, saying (111 S.W.2d 1. c. 35) :

“A city has the right to designate what part of a street should be paved and traveled, and to build the traveled part of the street around a parkway; and it is not liable for injuries sustained by persons who travel outside of the designated portions. Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54, 62, 61 A.L.R. 242; Griffin v. Chillicothe, 311 Mo. 648, 279 S.W. 84, 42 A.L.R. 1273.”

The rule was applied in Robinson v. Kansas City, supra, where the city graded twenty feet in the center of a dedicated street sixty feet wide, leaving the graded portion some six feet lower than the adjoining right of way. Plaintiff was injured when she fell as she was going down the shoulder of the graded area. In denying recovery the court said, 166 S.W. 1. c. 344:

“The city had a right to prepare a way only 20 feet wide in the middle of a dedicated street of 60 feet, without assuming any duty or liability with respect to the portions of the street left in a state of nature. Curran v. St. Joseph, 143 Mo.App. 618, 128 S.W. 203; Conner v. Nevada, 188 Mo. 148, 86 S.W. 256, 107 Am.St.Rep. 314; Downend v. Kansas City, 71 Mo.App. 529; Ely v. St. Louis, 181 Mo. 723, 81 S.W. 168.”

Sutton v. Fox Missouri Theatre Co., Mo., 336 S.W.2d 85, and Burgess v. Kansas City, supra, cited by plaintiff, both involve obstructions in areas over which the city had assumed control and are therefore not controlling here. In the Sutton case, plaintiff was injured when she fell over a sign on a busy city sidewalk, and in the Burgess case the city had licensed the operation of a lunch wagon on the parkway between the sidewalk and street for several years prior to the time plaintiff was injured at night by an unlighted bar protruding from the lunch wagon. Having improved and appropriated both areas for public use, the city in each instance was required to exercise ordinary care in keeping them in a reasonably safe condition.

We find the Village had not improved or exercised any control over this portion of the street right of way, and, therefore, had no duty to remove the stake placed there by the Bowling Corporation.

The record discloses that the judgment of the trial court was for the right party, and we find no reversible error in the court’s ruling.

For the reasons herein stated, the judgment of the trial court in favor of both defendants is affirmed.

ANDERSON, P. J., and WOLFE, J., concur.

RUDDY, J., not participating.


author: ANDERSON, Presiding Judge.

text:
    Gilbert REICH and Frances Reich, (Plaintiffs) Respondents, v. PINE LAWN BANK & TRUST COMPANY, a Corporation, (Defendant) Appellant.
    No. 30716.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 15, 1962.
    Gerald L. Seegers and Gerwitz & See-gers, St. Louis, for appellant.
    Henry C. Hinkel, Harold D. Carey, Clifford L. Goetz, and Hinkel & Carey, St. Louis, for respondents.
   ANDERSON, Presiding Judge.

This is an action by Gilbert Reich and Frances Reich, his wife, against Pine Lawn Bank and Trust Company, to recover an amount charged by defendant as interest on a loan alleged to be in excess of the legal rate of interest together with an attorney’s fee as authorized by § 408.050 RSMo 1959, V.A.M.S. Defendant filed a counterclaim to recover an amount of interest alleged to be due and claimed to have been rebated without consideration. The trial resulted in a verdict for plaintiffs on their cause of action in the principal sum of $799.42 plus an attorney’s fee of $600.00, and against defendant on its counterclaim. From the judgment entered on this verdict defendant has appealed.

The petition alleged that on May 1, 1957, plaintiffs entered into a conversation with the President of defendant relative to borrowing $20,000.00 to be secured by a deed of trust on premises owned by them; that they advised defendant that it was their intention to refinance their property so as to consolidate several loans, approximately one year from said time; and that they would make principal payments of $400.00 per month during that year.

It was further alleged that defendant, through its officer and agent, advised plaintiffs that defendant would make them a loan of $20,000.00 with the understanding that it would be paid in approximately one year, with interest at eight percent (8%) on the unpaid balance, but that in view of the small monthly payments, and in order to have the loan approved it would be necessary for plaintiffs to execute paper showing a total indebtedness of $24,000.00, payable in sixty monthly installments, together with a separate note in the sum of $20,000.00 payable in six months secured by a deed of trust to be held as security for the payment of said indebtedness.

It was then alleged that said instruments were executed and that plaintiffs made payments on said indebtedness of $400.00 per month for twelve months; that at the end of said period plaintiffs offered to pay the principal indebtedness then due, with interest on the unpaid balance at eight percent (8%); but defendant failed and refused to accept same, and refused to release the deed of trust until the entire balance was paid, plus an interest charge of $2,399.00 for the period of time involved.

It was further alleged that the representations made by defendant, through its president, to the effect that defendant would allow plaintiffs to repay the principal within one year, and would charge eight percent (8%) for the use of said money, were made with the intention of misleading the plaintiffs, and was part of a scheme to defraud plaintiffs and to exact usury in connection with said loan; that plaintiff relied upon said representations and in reliance thereon entered into the loan and executed said papers; that final payment of said loan was made June 4, 1958.

It was further alleged, that taking into consideration the payment of $400.00 per month, or $4800.00 for the year, interest at eight percent (8%), the agreed rate, would amount to $1,408.00; that the interest charged by defendant in excess of said sum was $991.00 and constituted usury under the statutes. It was then alleged that this action was brought under said statutes (Sections 408.030 and 408.050, RSMo 1949, V.A.M.S.) ; that the fraudulent representations, the taking of two notes and the exaction of $991.00 in addition to eight percent (8%) for the use of the money were all part and parcel of a scheme to exact usury from plaintiffs. The prayer of the petition was for judgment for $991.00, $2500.00 attorney’s fees and costs.

By its answer defendant denied the allegations of the petition charging usury and alleged that it loaned money to plaintiffs and secured from them their note for $24,-000.00, repayable in 60 monthly installments of $400.00 each, which note included interest at the rate of four percent (4%) per annum for five years; that said note was secured by a deed of trust on plaintiffs’ real estate; that at the end of one year plaintiffs desired to pay off the note and deed of trust, and, in order to secure the release of the deed of trust, agreed with defendant to pay defendant a portion of the interest previously charged, which defendant accepted in consideration for releasing the deed of trust and accepting premature payment.

By its counterclaim defendant sought to recover $1600.58, the amount alleged to have been rebated from the amount due on the note at the time defendant, at plaintiffs’ request, accepted the sum of $17,559.42 as payment of the note, cancelled the note and released the deed of trust. The theory of recovery was that there was no consideration for defendant’s acceptance of a sum less than the amount owed.

Plaintiffs by their answer to the counterclaim alleged that defendant, by and through its agents, fraudulently and as a means of obtaining usurious interest, prepared notes and mortgages payable in sixty (60) months and bearing interest for sixty (60) months instead of twelve (12) months, as agreed between the parties, and failed and refused to accept principal and interest for twelve (12) months as tendered by plaintiffs, and demanded and extorted from plaintiffs the sum of $991.00 usurious interest.

In May 1957 plaintiffs made application to defendant for a loan of $20,000.00. Defendant, through its President, Mr. Dodds, agreed to make this loan, and on May 1, 1957, plaintiffs executed their promissory note to defendant as payee for $24,-000.00, payable in sixty (60) monthly installments of $400.00 each, the first installment to be paid June 15, 1957, and subsequent installments on the fifteenth of each month thereafter. The note also provided for interest at eight percent (8%) after maturity. At the same time plaintiffs executed another note in favor of defendant for $20,000.00, which note was secured by a deed of trust on premises owned by plaintiffs. This note was payable six months after its date with interest after maturity at the rate of eight percent (8%) per an-num. After the execution of these instruments plaintiff’s account at defendant bank was credited with the sum of $20,000.00.

Plaintiffs thereafter paid to defendant $400.00 per month, the payoff specified in the $24,000.00 note, for a period of twelve (12) months, or a total of $4800.00, $800.00 of which was interest. At the end of that period, to liquidate the indebtedness, plaintiffs paid defendant the sum of $17,599.42, making a total payment during the year of $22,399.42. At the time of payment the two notes and deed of trust were returned to plaintiffs, marked paid, and the deed of trust was released of record.

Plaintiff Gilbert Reich testified that on May 1, 1957, he made a request for a $20,000.00 loan at the Pine Lawn Bank and Trust Company. This request was made through Douglas Dodds, President of the bank. His purpose for securing this loan was to consolidate certain other outstanding loans. He was then permitted to testify, over defendant’s objection, that such testimony tended to impeach the writing evidencing the loan, that he requested a one-year loan of $20,000.00 and that Mr. Dodds agreed to make it in that amount for a period of one year, with interest at four (4%) percent. He further testified that Mr. Dodds told him that payments of $400.00 per month would have to be made, to which he agreed. He also stated that his agreement with Mr. Dodds was, that the amount due at the end of the year would be paid off by a refinancing method or a renewal; that Mr. Dodds said he would make a loan at the end of the year combining all his various loans, or would obtain such a loan for him and that, in view of these statements, he went ahead and obtained from defendant the $20,000.00 loan. He further testified that at the time he made the loan Mr. Dodds caused him to execute the $20,000.00 note, which he examined, only to observe that it was for $20,000.00. He signed the Deed of Trust. He further stated that after the two above mentioned papers were signed Mr. Dodds gave him the $24,000.00 note for his signature; that he asked Mr. Dodds for an explanation of this note and was told it was taken to satisfy the loan committee at the bank. He further testified he did refinance his loans at the end of the year by securing a loan of $70,000.00 from the Citizens Bank and Trust Company of Maplewood, which reduced his yearly payoff from $17,000.00 to approximately $9,000.00. Prior to making the loan at the Maplewood Bank, Mr. Reich requested Mr. Dodds to release the deed of trust securing his loan at the Pine Lawn Bank, and permit him to continue to pay the $400.00 per month, but Mr. Dodds would not agree to release the deed of trust. The Citizens Bank and Trust Company would not make the loan to plaintiffs unless the deed of trust was released. Plaintiff then paid the loan at defendant bank by a check of Citizens Bank and Trust Company for $17,599.42. Before securing this check, Mr. Reich ascertained from the bookkeeper at defendant Bank the amount necessary to liquidate the loan. Mr. Reich objected to the amount. He thought it excessive but finally paid it. After the loan was paid Mr. Dodds explained to him that the $3200.00 interest due on the note was split in half in figuring the total amount due on the note.

Mr. Reich testified that the amount he was entitled to recover was $991.00. He arrived at this figure by computing interest on $15,200.00 for one year at eight percent (8%), which amounted to $1216.00. To this last sum he added $192.00, stating it was eight percent (8%) of $4800.00 for one year (actually it amounts to 4% of said sum), and subtracting the total $1,408.00 from $2,399.00, the amount of interest collected.

Plaintiffs’ counsel testified that $600.00 was a .reasonable attorney’s fee for the legal services which he rendered in the case.

Douglas W. Dodds testified for defendant. His testimony was to the effect that Reich requested a loan of $20,000.00 to pay off debts and reduce payments; that he stated he could repay in limited amounts each month. Dodds denied there was an agreement that the loan could be paid off at the end of the year, or that plaintiffs would be charged four percent (4%) only for the time he used the money. He testified that the bank regarded $4,000.00 of the face of the note as prepaid interest and that the $20,000.00 credited to plaintiff’s account was the net amount of the loan, and that the $20,000.00 note and deed of trust securing it were collateral for the loan. He further testified that it was Reich who asked for the five year term because he could not make payments of more than $400.00. He stated that the amount of rebate of the prepaid interest was $1,600.58.

The case was submitted by plaintiffs on the theory that plaintiffs were induced to pay usurious interest by reason of an assurance by defendant’s agent that the loan was for a period of one year, and by false and fraudulent representations with respect to the execution of the $24,000.00 note, as pleaded.

It is urged that the trial court erred in admitting evidence of the alleged prior oral agreement with .respect to the term of the loan in question, and in refusing to sustain defendant’s motion for a directed verdict to which it was entitled if this evidence is excluded from consideration. The question then is squarely presented whether this alleged oral agreement that the loan should be for one year only can be shown for the purpose of establishing usury.

The evidence of the alleged promise or agreement not only contradicts the terms of the note itself, but is in contradiction of the general rule that parol evidence of prior negotiations and agreements cannot be shown for the purpose of varying the terms of a written contract covering the same subject matter.'

There are a number of cases, which have been cited by respondents, which hold that on the issue of usury, the court will disregard the form and look only to the substance of the transaction. Securities Inv. Co. of St. Louis v. Rottweiler, Mo.App., 7 S.W.2d 484, has been cited as an authority for such proposition, and as warranting the introduction of the testimony of which appellant complains. In that case, however, the parol evidence was introduced for the purpose of showing that the notes called for sums in excess of the actual amounts loaned, to enable the person making the loan to receive interest in excess of the lawful rate. The evidence, as we take it, did not contradict the written contract except as to the amounts of consideration. Evidence to show the actual amount of consideration of a contract is generally competent in any case where the question arises. Respondents also cite State v. Sargent, 241 Mo.App. 1085, 256 S.W.2d 265. In that case the court considered evidence which tended to show that a sum which the contract specified as a commission to appellant therein, as agent of the borrower, was in fact paid to appellant as lender or agent of the lender, and held that such evidence was sufficient to support a conviction for usury. In Burch v. Schmelig, Mo.App., 300 S.W.2d 838, defendant filed a counterclaim in which he sought to set aside a contract of sale of real estate, and to recover earnest money paid thereunder on the ground of fraudulent representations as to the size of the lot which was the subject matter of the contract. The court held that since defendant was not suing on the contract, but attempting to avoid the undertaking on the ground of fraud, testimony relative to what occurred prior to the signing of the contract which tended to show the fraud alleged, was admissible notwithstanding the parol evidence rule. Burns v. Vesto Company, Mo.App., 295 S.W.2d 576, held that the parol evidence rule had no application in an action based upon fraud in the procurement of the sale.

The foregoing cases are not, in our judgment, in point on the question presented on this appeal. There is no contention that plaintiffs did not receive the full amount of the loan, $20,000.00, nor is this a suit in equity to rescind or set aside the contract for fraud unrelated to the subject of the contract. On the contrary, it is an attempt to show fraud directly related to the subject of the contract which resulted in requiring plaintiffs to pay usurious interest. Parol evidence is not admissible under such circumstances. Fischman-Harris Realty Co. v. Kleine, Mo.App., 82 S.W.2d 605; Alford v. Rowell et al., 44 N.M. 392, 103 P.2d 119; Kelly v. Ellis et al., 39 Mont. 597, 104 P. 873; Armington et al., v. Steele et al., 27 Mont. 13, 69 P. 115; Sund et al. v. Flagg & Standifer Co., 86 Or. 289, 168 P. 300; Seitz v. Brewers’ Refrigerating Machine Co., 141 U.S. 510, 12 S.Ct. 46, 35 L.Ed. 837; Jones, Commentaries on Evidence, Vol. 3, (2d Ed.) Sec. 1492 pp. 2719-2720. In our opinion the court erred in admitting testimony concerning the alleged oral agreement and testimony with reference to the alleged false representations,

It is our view that under the evidence properly to be considered there has been shown no obligation entered into by which plaintiffs were required to pay an amount in excess of the money borrowed with legal interest thereon, and that no usurious interest has been paid. Where there is no optional prepayment clause in a note, it is not usurious for a lender to require payment of interest, or a part thereof, as was done in this case, to the date of maturity of his note, even though he pays the debt before maturity and the amount paid exceeds lawful interest computed to the date when the loan was paid. Hanson v. Acceptance Finance Co., Mo.App., 270 S.W.2d 143. The trial court should have sustained defendant’s motion for a directed verdict.

In view of the above ruling it becomes unnecessary for this court to pass upon other points raised by appellant with respect to instructions given.

The judgment is reversed.

WOLFE, J., concurs.

RUDDY, J., took no part in the decision of this appeal.


author: SAMUEL A. DEW, Special Commissioner.

text:
    Paul R. GIDLEY, (Plaintiff) Respondent, v. The INDUSTRIAL COMMISSION of Missouri, Division of Employment Security, a Public Quasi Corporation of The State of Missouri, and Pittsburgh Plate Glass Company, a Corporation of the State of Pennsylvania, (Defendants) Appellants.
    No. 30951.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Harry L. C. Weier, Dearing, Richeson & Weier, Hillsboro, for appellant Pittsburgh Plate Glass Co.
    Lloyd G. Poole, Jefferson City, for appellant. Industrial Commission of Missouri.
    Leo J. Rozier, Perryville, for respondent.
   SAMUEL A. DEW, Special Commissioner.

Respondent made claim for benefits under the Missouri Employment Security Law, which was denied by the Industrial Commission of Missouri, and thereafter the decision was reversed by the Circuit Court on appeal and remanded to the Commission. From such judgment of the Circuit Court appellants took this appeal.

In the interest of convenience we shall hereinafter refer to the Industrial Commission of Missouri as the “Commission,” the Division of Employment Security as the “Division,” the appellant Pittsburgh Plate Glass Company as the “Employer” and the claimant as the “Respondent.”

On January 7, 1959, respondent filed a “renewed” claim for benefits for the period of February 1, 1959, to February 14, 1959. The Deputy of the Division determined that the respondent was eligible for the benefits applied for, and that the “Claimant contacted several employers during the period 2-1-59 to 2-14-59 and has shown he made an earnest effort to find work. Claimant was available during this period.”

On March 13, 1959, the employer appealed from the Deputy’s determination to the Appeals Tribunal of the Division, asserting that — “Even though he (respondent) secured temporary employment elsewhere for a short period of time, he did not give up his employment with the Pittsburgh Plate Glass Company and returned to work here as soon as the strike was settled.”

At the hearing of the appeal before the Referee of the Appeals Tribunal, respondent’s claim (along with three others) was considered and evidence thereon was heard. At the outset of the hearing the Appeals Referee called attention to the fact that respondent and the three other claimants had made previous claims in which previous decisions had been made on the question as to whether they had employment since separation from the appellant employer, which decisions were still pending and not yet final. The Referee stated that he believed that under the circumstances he could pass only on the availability of the claimants. Counsel for respondent then stated that it could be stipulated that previous testimony regarding the subsequent employment following the work stoppage at the employer’s plant was applicable to the present claimants “and would follow insofar as the removal from the strike by subsequent employment would become a part of this record also as it was given in the previous cases.” Counsel for all parties agreed to the suggestion. However, the counsel for the employer said he “would agree by submitting Exhibit ‘A’ ” and making it a part of the record. Exhibit “A” reads as follows:

“In the submission of unemployment compensation claims before the Referee, on all those cases where the claimant previously applied for compensation and this is merely a renewal of the claim for the new claims year, the claim should be submitted upon the previous testimony given as to claimant’s eligibility on account of the work stoppage which commenced with the strike on October 6, 1958. If no testimony was introduced at the original hearing with respect to the claimant’s return to work at employer’s plant in Crystal City, then that showing should be made at this hearing. No waiver or stipulation for eligibility should be entered into with respect to the claimant’s ability to work, readiness and willingness to work and his activity in seeking work during the new claim weeks. The burden to establish this is, of course, upon the claimant.”

No part of any record of any previous claim or proceeding by respondent to be so considered in the present proceedings was introduced, offered or is shown of record herein.

Respondent’s claim, along with the three others, was then heard and evidence received. The testimony of respondent (the only witness in connection with his claim) and the stipulations of counsel with the Referee, tended to show that the employer operates a glass factory in Crystal City, Missouri; that Local 63 of Glass, Ceramic and Sand Workers, AFL-CIO, was the bargaining representative of the production and maintenance workers in the employer’s plant; that a contract between the union and the employer expired September 25, 1958, and negotiations for a new contract concerning wages, hours and working conditions failed; that a strike was called which caused a stoppage of work; that the stoppage ceased on February 16, 1959; that there was no production from October 6, 1958, to February 17, 1959; that respondent had been employed by the employer as a production worker; that he returned to work for the appellant employer on February 9, 1959.

The respondent further testified that after the work stoppage, he had obtained work at the Katz Drug Company, where he was laid off on January 3, 1959; that he had not obtained employment since, until he returned to work for the appellant employer; that during the period of his unemployment he was able to work; that he had looked for work at the Mississippi Lime Company at his home town of Ste. Genevieve, Missouri; also he applied at the Bailey Equipment Company and at Stanton’s Garage, and the Do-Drop-Inn; that he also inquired of his brother, Assistant Manager of Samuel’s Shoe Company and again at Katz Drug Company; that they were all places where he might logically look for the type of work that he could do; that he restricted his application only twice, as salesman with automobile dealers. He stated that he never refused any work offered him, nor set any minimum wage, but sought full time work. He said he applied at two places each week.

The Referee of the Appeals Tribunal found, in part, that the respondent and the others had previously filed claims for benefits following periods of employment with other employers since October 6, 1958; that respondent and the others were found eligible therein by the Deputy; that appeals therefrom were taken by the employers contending that the claimants were ineligible for benefits by virtue of a labor dispute which had not yet been terminated; that following hearings before the Referees it was found that the claimants were last employed by employers other than the appellant and that such employment was bona fide as permanent employees for at least the major part of two weeks, and that as a result thereof the ineligibility of each claimant because of the labor dispute had been terminated. The employer filed timely applications to have the Industrial Commission of Missouri review the Referee’s decision in each instance. No decision on any one of the applications has been rendered by the Industrial Commission. Under the circumstances the Referee held that he can consider at this time only the claimants’ eligibility for benefits with respect to weeks subsequent to the weeks which were considered in the cases now pending before the Industrial Commission, except that he cannot reconsider the question of whether these claimants obtained bona fide employment as permanent employees for at least the major part of two weeks subsequent to October 6, 1958.

The finding of the Referee continued: “The Missouri Employment Security Law provides that to be eligible for benefits, a claimant must be able to work and available for work, and to be considered available for work he must be actively and earnestly seeking work. The Referee finds that each of the claimants was able to work and available for work. During the weeks under review each one of the claimants conducted a reasonably active and earnest search for work. No one of the claimants placed an unreasonable restriction upon his acceptance of work. Each of the determinations of the Deputy is affirmed.”

The employer promptly appealed the above finding of the Referee, in the instant case, to the Commission. The Commission heard no additional evidence and on December 19, 1960, based solely on the record of the Referee in the Appeals Tribunal hereinbefore described, and with one dissenting vote, reversed the decision of the Appeals Tribunal, holding that under respondent’s testimony he was not eligible for “waiting week credit or benefits for the weeks under consideration”; that he did not make a reasonably active and earnest search for work under his circumstances; that he was a regular employee of the appellant employer (on strike), was a member of the union pursuing the strike; that his availability for work was unduly limited while he was actively participating in the strike and by his continued membership in the union.

On January 6, 1961, respondent appealed from the above decision of the Commission to the Circuit Court of Ste. Genevieve County, Missouri, and upon the same record certified by the Appeals Tribunal above mentioned. The grounds of the appeal were that the Commission erred in fact and in law in (1) ruling that respondent was not entitled to working week credit or benefits for the weeks under consideration because his total or partial unemployment was due to a stoppage of work growing out of a labor dispute in the factory, and in ruling that his ineligibility for such reason has not been terminated by subsequent employment, and that respondent did not make a reasonably active and earnest search for work for an individual of his circumstances, and (2) that the findings of the Commission as to the facts were not supported by competent and substantial evidence; that the decision is not in accord with the spirit and purpose of the law; that the decision of the Commission was capricious, arbitrary, unwarranted, prejudicial and biased, and completely ignores the wording of the statutes in such cases made and provided.

The separate answers of the Commission, the Division and the employer to the petition for review to the Circuit Court generally denied the complaints alleged, and averred that the decision of the Commission was supported by competent and substantial evidence and, based upon the whole record, the Commission could reasonably have made its findings and reached the ultimate results of its decision upon the evidence.

The Circuit Court entered its judgment on the above appeal on April 13, 1961. It held that the Commission erred in its finding that respondent was not available for work, for not having made a reasonably active and earnest search for work in his circumstances ; that it was error for the Commission to rule that the decision of the Referee was not supported by competent and substantial evidence on the whole record; that the decision of the Commission was clearly contrary to the overwhelming weight of the evidence and erroneous as a matter of law, for which reason the court reversed the decision of the Commission and remanded the case to it for further proceedings not inconsistent with the foregoing declarations.

Upon the present appeal from the judgment of the Circuit Court the appellants contend that the court erred in its decision reversing the ruling of the Commission and remanding the case to it because the Commission, based on the whole record, could reasonably have made its findings and reached its results when it found respondent ineligible, unavailable for work and had failed to make a reasonably active and earnest search for work and that his unavailability was unduly limited as an employee of the employer (on strike), the respondent having no intention to terminate that relationship.

Appellants’ second and remaining point of error is similar to the first and pertains to the merits of the appeal, neither of which points do we find it necessary to discuss because of the disposition we believe we must make of this appeal.

In our opinion the first and only record of the hearing in this case was such that neither the Circuit Court nor, in fact, the Commission, and for that matter, the Appeals Tribunal, could have rendered a decision that was authorized by law.

As pointed out by the stipulation of counsel with the Referee of the Appeals Tribunal, it was mutually agreed that certain evidence previously heard in connection with some unidentified prior proceedings presumably brought by respondent and others would be applicable to and would be considered in the instant proceedings, no part of which was offered, introduced or made a part of the record herein on which the decision in question must be based. The Commission added no additional evidence to the record and based its decision upon the above incomplete record of the proceedings before the Referee. Likewise, the record thus certified to the Circuit Court and to this court is vitally incomplete and defective in that evidence considered below is omitted. Whether the omitted evidence considered by the Referee affected respondent’s alleged efforts to obtain employment during the period in question, or his ability to work, or his restrictions, if any, in his requests for employment, or the circumstances of his termination of previous employment, or his membership, if any, in the union pursuing the strike of which there is no direct evidence, or his participation in the strike of which the testimony shown contains no proof, or other elements prescribed by the statutes in such proceedings, is impossible to determine because of its omission from the record.

The statute requires of the Appeals Tribunal that a complete record be kept of all such proceedings. Section 288.190 provides: “A full and complete record shall be kept of all proceedings in connection with a disputed determination. The appeals tribunals shall include in the record and consider as evidence all records of the division that are material to the issues. All testimony at any hearing shall be recorded but need not be transcribed unless the matter is further appealed.” Section 22, Art. V, Constitution of Missouri 1945, V.A.M.S., authorizing a judicial review of such decisions of administrative agencies requires the inclusion in such review of a determination of whether the decision is supported by competent and substantial evidence “upon the whole record.” This, of course, would require a record of all the evidence heard or considered as a basis for the decision under review.

• Upon appeal from the decision of the Referee of the Appeals Tribunal to the Commission, the latter may review the case on the “evidence previously submitted” to the Appeals Tribunal (Sec. 288.200), as it did in this case, or may hear additional evidence. On appeal from the Commission to the Circuit Court, the Commission must verify to the court “a copy of the record in the case, including all documents, papers and the transcript of the testimony taken in the matter, together with all findings, conclusions and decisions therein.” In such judicial reviews the court must determine if the Commission’s findings were supported by competent and substantial evidence and are authorized by law which, of course, would require all the evidence considered as shown by the record before the Commission, which, in this case was solely the incomplete record of the Appeals Tribunal, above described.

It was said in Koplar v. State Tax Commission, Mo., 321 S.W.2d 686, 695: “In view of the provisions of Sec. 22, Art. V of the Constitution of Missouri and of Chapter 536, R.S.Mo., 1949, V.A.M.S., we think a determination as to whether the decisions of any administrative agency is supported by competent and substantial evidence upon the whole record can only be made by reference to such evidence as is incorporated in the record presented for review. Sec. 22, Art. V, Const. of Missouri; Secs. 536.070 and 536.140 RSMo 1949, V.A.M.S.; Sec. 138.470, as amended Laws of Missouri 1957, p. 800. And see State ex rel. Rice v. Public Service Comm., supra, [359 Mo. 109,] 220 S.W.2d 61, 64(4); Sanderson v. Producers Comm. Ass’n, supra, [360 Mo. 571,] 229 S.W.2d 563, 565(4).”

Thus it is clear that not only did the Referee make his determination in part on evidence which was no part of the record herein, but did not certify to the Commission for its review a record of all the evidence considered, and neither did the Commission nor the reviewing Circuit Court, nor does this court have a complete record of all the evidence considered in arriving at a determination of the issues involved. The procedure under the Employment Security Law is liberal and to be liberally construed, but not to the extent that decisions thereunder which are based on unrecorded and undisclosed evidence can be reviewed by the Commission or by the courts. Howell v. Division of Employment Security et al., 240 Mo.App. 931, 222 S.W.2d 953, 956.

Since there has never been a decision or judgment in this case that was authorized by law, at any stage of its pendency, for the reason that there has never been made, kept, preserved and certified the whole record of the evidence considered as required by statute, the judgment of the Circuit Court should be reversed and the cause remanded with directions to enter a judgment reversing the decision of the Commission and remanding the cause thereto for further proceedings not inconsistent with the rulings hereinbefore stated. (Sec. 288.200(1)). The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DEW, Special Commissioner, is adopted as the opinion of the court.

The judgment of the trial court is accordingly reversed and the cause remanded with directions to enter a judgment reversing the decision of the Commission and remanding the cause thereto for further proceedings not inconsistent with the rulings hereinbe-fore stated.

ANDERSON, P. J., WOLFE, J., and HARRY A. HALL, Special Judge, concurs.


text:
    George H. BROOKS, Individually and on behalf of all others similarly situated, (Plaintiff) Appellant, v. The CLUB EXCHANGE CORPORATION, a Corporation, (Defendant) Respondent.
    No. 31039.
    St. Louis Court of Appeals. Missouri.
    April 17, 1962.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 15, 1962.
    Goldenhersh & Goldenhersh, Samuel J. Goldenhersh, Frank J. Lane, Jr., Dubinsky & Duggan and Jerome Duggan, St. Louis, for appellant.
    Douglas B. Remmers, Robert D. Evans, Green, Hennings, Henry, Evans & Arnold, St. Louis, for respondent.
   SAMUEL A. DEW, Special Commissioner.

Plaintiff sued to cancel the appointment of defendant as attorney-in-fact for plaintiff and others, subscribers and policyholders in a reciprocal insurance group. From an order of the trial court sustaining a motion to dismiss the action, the plaintiff has appealed.

The plaintiff, in his petition, alleges, that he is bringing this action for himself and others in a similar situation; that he is a subscriber and a policyholder in the Automobile Club Inter-Insurance Exchange (hereinafter referred to as Inter-Insurance Exchange), a voluntary reciprocal insurance group; that he and others similarly situated designated the defendant corpora-lion as their attorney-in-fact, thereby creating a trust relationship between them and defendant and that in such fiduciary capacity, defendant has enriched itself at the expense of plaintiff and such other subscribers and Inter-Insurance Exchange, for which unjust enrichment plaintiff asks for an accounting from defendant.

The petition alleges that presently the plaintiff is being sued for damages and that Inter-Insurance Exchange has undertaken the defense. It is stated that the present action is brought in behalf of Inter-Insurance Exchange; that it would be futile to request that group to bring this action since it is managed and directed by an Advisory Board or defendant, although requested; ant; that information and relief pertaining to plaintiff’s complaints made herein have not been forthcoming from the Advisory Board appointed and supplied by defend-that defendant has had an income from Inter-Insurance Exchange over the past five years of approximately $7,800,000 through-the acquiescence of the Advisory Board; that said Board is dominated and controlled by the defendant, whereby defendant has been permitted to appropriate for its own use some $7,800,000 over the past five years from the assets of the plaintiff, the other such subscribers and the Inter-Insurance Exchange, in breach of said fiduciary relationship of the defendant; that the Advisory Board, during the last five years, lost for the plaintiff and such other subscribers and the Inter-Insurance Exchange, by investments, the sum of $187,000, as to which defendant has taken no action for recovery of same; that during said period the Reserve and Surplus Fund of Inter-Insurance Exchange has been depleted by $800,000 and defendant, in violation of its fiduciary relationship aforesaid, has taken no steps to recover same. Plaintiff also alleged that defendant and said Advisory Board are proposing a purchase of the common stock of the defendant by Inter-Insurance Exchange, at the unconscionable price of $72 per share, which purchase would work an irreparable harm to plaintiff, to the other subscribers and to Inter-Insurance Exchange; that during the last five years there has been vast depletion of surplus funds, and dividends have been paid out of prior accumulated surpluses; that such misconduct on the part of defendant will expose plaintiff and other subscribers to a contingent assessment; that the agreement appointing defendant as attorney-in-fact provides that the plaintiff can cancel the same upon notice; that the Advisory Board and Inter-Insurance Exchange should cancel said agreement appointing defendant as said attorney-in-fact, and so long as they show no interest in doing so, the plaintiff and other subscribers will suffer irreparable harm.

The petition further states that plaintiff and the other subscribers similarly situated are at the whim and caprice of defendant; that the assets of Inter-Insurance Exchange will continue to be dissipated unless the relationship as attorney-in-fact between defendant and the plaintiff, and the Inter-Insurance Exchange be terminated instanter.

The petition asks that an order be made directed to defendant to show cause why such relationship should not be forthwith terminated in the interest of justice and equity.

The formal prayer of the petition was that an order be made and directed to defendant “as to canceling forthwith the agreement existing between the plaintiff, all others similarly situated and the Automobile Club Inter-Insurance Exchange and the defendant wherein defendant is named as attorney-in-fact, and that the court forthwith appoint an attorney-in-fact for this plaintiff, all others similarly situated, and the Automobile Club Inter-Insurance Exchange; to have an accounting of the funds, money and property of this plaintiff, all others similarly situated, and the Automobile Club Inter-Insurance Exchange, collected, disbursed, managed, retained and handled by the defendant,” and for general relief.

The grounds of defendant’s motion to dismiss were that the court lacked jurisdiction of the subject matter because the relief sought was within the provisions of the Insurance Code and subject to the sole control of the Superintendent of Insurance and because said Superintendent alone could request such relief; that plaintiff lacked legal capacity to bring this action because such Superintendent alone is authorized to do so, and the petition fails to state a claim upon which relief can be granted. Attached to the motion was a sworn copy of the agreement signed by the plaintiff, appointing defendant as said attorney-in-fact.

The court sustained the motion to dismiss on the stated grounds that the court lacked jurisdiction of the subject matter in the cause, and that plaintiff had no legal capacity to bring the action.

The plaintiff presents for our review the single point that “plaintiff, as principal, has a common law right to bring this action to dismiss his agent, Defendant, which right has not been pre-empted by any statute or other authority giving such power solely to the Superintendent of Insurance of Missouri.”

In defendant’s answer brief, timely served and filed herein, it is stated that “Following the dismissal of appellant’s action the plan of reorganization of the reciprocal which apparently prompted the action, was put into effect. A new attorney-in-fact, with the approval of the Superintendent of Insurance, was substituted for respondent and respondent Corporation was dissolved and completely liquidated.”

Plaintiff’s reply brief made mere reference to the quoted part of defendant’s brief, characterized it as a comment outside of the record on matters not in evidence, as an obvious attempt to influence this court’s disposition of the case, and asserts that the statement described is indicative of defendant’s complete lack of regard for the rights of any other party than itself. •

In the course of the oral arguments the defendant’s counsel urged that the case had now become moot on account of the quoted matters in the answer brief referred to above. The plaintiff’s counsel in his rebuttal argument, upon questions by the court, stated that he knew of the assertion in the defendant’s brief in question but he neither denied it nor did he challenge its effect upon this appeal.

This court, therefore, has no reason to question the truth of the averment, thus brought to its attention in open court and not explained or denied by the plaintiff, that since the dismissal of this action by the trial court, the defendant has ceased to occupy the status and position of said attorney-in-fact sought to be terminated by this action; that a successor to the defendant has heretofore been appointed with the approval of the Superintendent of Insurance, and that the defendant corporation has already been dissolved and liquidated.

Hence, the sole issue submitted for our review as to whether plaintiff has a common-law right to dismiss defendant as his attorney-in-fact has become a moot question as to which this court could not now grant the plaintiff effectual relief.

This court has the power to notice facts outside of the record for the purpose of considering whether the issue submitted is moot. State ex rel. Myers v. Shinnick, Mo., 19 S.W.2d 676; State ex rel. Donnell v. Searcy et al., 347 Mo. 1052, 152 S.W.2d 8. We find no public interest or other element that would now justify the otherwise empty formality of determining the point assigned for our review. State ex rel. Dyer v. Union Electric Company et al., Mo.App., 312 S.W.2d 151.

For the reasons stated this appeal should be dismissed. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by SAMUEL A. DEW, Special Commissioner, is adopted as the opinion of the Court.

The appeal is accordingly dismissed.

ANDERSON, P. J., WOLFE, J., and HARRY A. HALL, Special Judge, concur.