author: EAGER, Presiding Judge.

text:
    KANSAS CITY POWER & LIGHT COMPANY, a Corporation, Respondent, v. FEDERAL CONSTRUCTION CORPORATION, a Corporation, Appellant.
    No. 48576.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.
    Motion for Modification of Opinion and Order Denied Dec. 11, 1961.

      Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for appellant.
    Joseph J. Kelly, Jr., William H. Wood-son, Donald W. Giffin, Spencer, Fane, Britt & Browne, Kansas City, for respondent.
   EAGER, Presiding Judge.

Respondent Kansas City Power & Light Company sued appellant Federal Construction Corporation, its contractor on certain work, for indemnity under a written contract. Respondent had previously settled personal injury suits filed against it by two employees of the contractor. It recovered $25,083.82 in the trial court and this appeal followed. We shall refer to respondent as plaintiff and to appellant as defendant.

A “General Contract Proposal” dated August 27, 1954, had been executed by the ■parties, covering the construction of distribution and transmission lines by defendant; thereafter, and subject to the general contract, a “Job Proposal” was executed and accepted on July 11, 1955, providing for the “Reconductoring” of a certain high voltage line between plaintiff’s Hawthorne Plant and the junction of Highway 24 and Manchester Avenue in Jackson County. Specifically, this work consisted of replacing the magnetic suspension clamps with nonmagnetic clamps to procure greater efficiency; the clamps fixed the wires to the insulators. This line consisted of three wires suspended on nineteen sets of dual poles; the wires were suspended below crossarms on each set of poles and were clamped to the bottoms of rather long insulators extending downward from the crossarms to the wires. From a stipulation of facts filed, the following appears: when the work began plaintiff de-energized the line by disconnecting the three “jumper wires” or leads at a steel tower inside the plant area where the line was normally energized; at that time it connected these three jumper wires with lugs, screws and clamps to the legs of the tower structure, where they would receive no current. At the time of the injuries in question, on November 1, 1955, two of defendant’s linemen, Bill Harber and Robert Spurlin, were working on the last of the pole structures, the one just outside the Hawthorne generating plant; this was on land owned by plaintiff. At that time they had pulled the center wire somewhat up and to the north with a block and tackle so that they could reach the clamp as they stood on the pole with their spikes, supported by their belts. The same procedure had been followed on all other eighteen structures. While they were thus changing the clamp, the end of the “jumper” (a short wire leading downward from the main wire to pick up the current from a “bus bar”) on the center wire broke loose from its previously fixed position on the steel tower, swung free and downward, and twice contacted the energized "bus bar” as it swung. This sent the high voltage current for short periods through the wire on which the men were working, severely injuring them. They were paid workmen’s compensation benefits by defendant’s insurer and their medical expenses were also paid by it. When plaintiff was sued by these men, it tendered the defense to defendant, but the latter declined to assume it. The amount which plaintiff should recover in the present action, if anything, was stipulated. The payments made by plaintiff in settlement of the suits' included payments to defendant’s workmen’s compensation insurer as subrogee.

We are concerned only with the indemnity and insurance features of the contract between the parties. At the expense of brevity we must quote the indemnity provisions in full: “Responsibility for all risks shall be assumed by the Contractor, and he will be held liable for the safety of the work to be performed by him. He shall be held responsible and shall make good without delay any damage arising, from accidents, negligence, or carelessness pertaining to the work and every part thereof, and for all materials, tools, appliances, and property of every description used in connection therewith. Every precaution will be used by the Contractor to protect the workmen and others about the premises and the public on the streets, highways, or rights-of-way, and he shall indemnify and save harmless the Company and its representatives, successors, and assigns from all suits or actions of every nature or description for, or on account of, damage or injuries received or sustained by any party or parties by or from the Contractor, his agents, or servants in the performance of the work.” (From page 7 of the contract.)

“The Contractor shall indemnify, defend and save the Company harmless from all loss, cost, expense, damage, judgment or other obligations resulting from or arising out of the acts or omissions of the Contractor, or any sub-contractor, their respective servants, agents, and employees, resulting-in injury to, or a claim of injury to, the person or property (1) of the Contractor’s employees and (2) of all other persons. The performance of this indemnification will be assured by the Contractor taking out, paying the premium on, and, at all times during the life of the Contract, keeping in force adequate policies of liability insurance with minimum coverage as follows:” (The foregoing is from page 8 of the contract; here followed a description of several types of insurance which will be referred to presently.)
“Responsibility of Contractor to Private Property Owners. In connection with construction of the distribution or transmission line, the Contractor shall, whenever practicable, use existing roads or lanes to travel upon privately-owned property, and shall, as far as reasonably possible, stay upon those parts of privately-owned land in which the Company will have acquired rights of entry or other rights. In those cases where the Contractor finds it necessary to enter upon, travel across, or otherwise use privately-owned land outside of the rights on such land acquired by the Company, the Contractor shall make all necessary arrangements with the landowners involved for such rights of entry and use of their property. The Contractor shall be responsible and liable to landowners and other claimants for, and shall hold and save harmless the Company from, any and all actual or alleged damages, injuries, costs, expenses, suits, causes of action or claims, whether relating to persons or property or both, arising out of or as a consequence of the construction of the distribution or transmission line. This shall include, without limiting the generality of the foregoing, any and all claimed damage to any of the following: standing or growing crops, fields, pastures, roads or other land because of ruts or holes created in the process of construction; tears, snags, or other damage to fences or gates; injury to existing buildings, walls, springs, or other improvements from blasting operations during construction; loss of or injury to livestock from any act connected with such construction; including losses caused by failure to replace or restore fences or failure to close gates; loss of or injury to personal property in place on land; interference with the normal flow of springs, wells or creeks or the normal drainage of surface water because of grading, digging, blasting, or other operations connected with the construction; injury to persons from blasting operations; interference (other than inductive interference) or damage to any telephone or telegraph line or cable, power line or cable or gas or oil pipe lines; or other acts connected with such construction.” (From page 20 of the contract.)

The insurance so required was (omitting automobile coverage) : “Workmen’s Compensation; Public Liability, extending coverage to include the interests of Kansas City Power & Light Company; Property Damage, extending coverage to include the interests of Kansas City Power & Light Company; Contingent Public Liability, if Contractor employs any sub-contractors, extending coverage to include the interests of Kansas City Power & Light Company; Contingent Property Damage, if Contractor employs any sub-contractors, extending coverage to include the interests of Kansas City Power & Light Company; Contractual Liability; Contractual Property Damage.” Stated limits of the various coverages were included.

The case was tried to the court without a jury upon the stipulation of facts and a supplemental stipulation. The latter was prompted by a suggestion of the court that it would like to examine the insurance policies. Copies of three policies were attached,- — with many endorsements. We shall disregard one as it covers merely automobile liability. Of the other two, one was Michigan Mutual Liability Company’s “Comprehensive General Liability” Policy No. 18-3171, issued to defendant; one of its primary coverages was “To pay * * all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person and caused by accident.” Liability assumed under any contract was generally excluded, except as defined therein, but the policy bore an endorsement making it applicable to the “legal liability of others assumed by the named insured” under the Kansas City Power & Light Company construction contract; and, except with respect to the stated assumed liability, the policy expressly excluded liability for injury to any employee of the insured while engaged in its employment. There is no reference in that policy to “Extended Coverage” as such.

Policy No. 16-101363 of the same insurer was entitled “Workmen’s Compensation and Employer’s Liability Policy.” In addition to the workmen’s compensation coverage it provided coverage of insured for injury to any employee arising “out of and in the course of his employment,” apparently to cover the liability in those instances where the Compensation Law might not be applicable. This policy made no reference to any assumed contract liability; in fact, the bodily injury coverage (as distinguished from the workmen’s compensation coverage) expressly excluded obligations under the “Workmen’s Compensation Law” and liability assumed by the insured under any contract. We may confine our primary consideration here to the “Comprehensive” Policy No. 18-3171. After the issuance of these policies plaintiff notified defendant that the insurance requirements had been met.

It seems to stand conceded that plaintiff was legally chargeable with negligence in permitting the jumper wire to break loose and become energized. In any event, we take that fact to be true. It is also conceded that defendant’s employees were working on the center wire and had moved it somewhat when the casualty occurred; plaintiff says that-this constituted “acts” of the defendant. There is nothing in the stipulated facts to show that these acts of defendant’s employees amounted to negligence or misconduct of any sort. Basically, the question here is whether or not the contract constituted an agreement to indemnify plaintiff against the results of its own negligence. And, as a corollary of this, the question is posed: did the requirement of and the procuring of insurance, indicate a mutual intent to require defendant to assume liability for plaintiff’s negligence and, as plaintiff says, for all major losses and claims resulting from the work? There are further incidental contentions which we shall not reach.

While the proposition has been discussed and controverted, at times, it seems clear now that in a private contract, where the parties stand on a substantially equal footing, one may legally agree to indemnify the other against the results of the indemnitee’s own negligence. List & Clark Construction Co. v. McGlone, Mo.App., 296 S.W.2d 910; Kansas City Stock Yards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692. But it has often been said that a contract of indemnity will not be construed so as to indemnify one against loss or damage resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms. Thomas v. Skelly Oil Co., Mo.App., 344 S.W.2d 320, 321; Missouri District Telegraph Co. v. Southwestern Bell Telephone Co., 338 Mo. 692, 93 S.W.2d 19, 26; North American Ry. Construction Co. v. Cincinnati Traction Co., C.C.A. 7, 172 F. 214, 216; United States v. Wallace, C.C.A. 9, 18 F.2d 20; Batson-Cook Co. v. Industrial Steel Erectors, C.C.A. 5, 257 F. 2d 410, 412; Perry v. Payne, 217 Pa. 252, 66 A. 553, 11 L.R.A.,N.S., 1173, 10 Ann. Cas. 589; Central Surety & Insurance Corp. v. Hinton, 233 Mo.App. 1218, 130 S. W.2d 235, 238; New York Central R. Co. v. Chicago & E I R Co., 360 Mo. 885, 231 S.W.2d 174, 177; Thompson-Starrett Co., Inc. v. Otis Elevator Co., 271 N.Y. 36, 2 N.E.2d 35, and 175 A.L.R., note, pp. 29-32. And it has often been held that mere general, broad, and seemingly all-inclusive language in the indemnifying agreement is not sufficient to impose liability for the indem-nitee’s own negligence. Missouri District Telegraph Co., supra; Batson-Cook Co., Inc., supra; United States v. Wallace, supra. As stated in North American Ry. Construction Co. v. Cincinnati Traction Co., C.C.A. 7, 172 F. 214, at loc. cit. 216 (quoted in Missouri District Tel. Co. v. Southwestern Bell Tel. Co., supra, p. 28 of 93 S.W.2d): “ ‘Contracts of indemnity such as the one here sued upon, are usually intended to provide against loss or liability of one party, through the operations of the other, or caused by physical conditions that are under the control of the other — over which the party indemnified has no control, and the party indemnifying has control. Indeed, it would take clear language to show that a contract of'indemnity was intended to cover conditions or operations under the control of the party indemnified, and not under the control of the indemnifying party, such, for instance, as accidents, the proximate cause of which is the negligence of the party indemnified.’ ”

Coming now to a construction of the contract terms, we note, first, that there is certainly no specific agreement to indemnify plaintiff against its own negligent acts. In the light of the foregoing principles we examine further the language used. We find (p. 7) : “Responsibility for all risks shall be assumed * * * and he will be held liable for the safety of the work to be performed by him.” (All italics are ours.) While the sentence is very indefinite, we construe it as referring solely to risks created by the contractor’s own acts. Further: “He shall * * * make good * * * any damage arising from accidents, negligence, or carelessness pertaining to the zvorh * * * and for all materials, tools, * * At most, this can refer only to defendant’s own acts, if indeed it is not meant merely to cover property damage. Then: “He shall indemnify * * * the Company * * * from all suits * * * for * * * damages or injuries received * * * by any party by or from the Contractor, his agents, * * * in the performance of the work.” The latter sentence, as a sort of summary, amply reinforces the view that the whole paragraph speaks only of indemnity from injuries or loss occasioned by, and resulting because of, defendant’s own acts.

. In the provisions from page 8 we find: “shall indemnify * * * from all loss * * * resulting from or arising out of the acts or omissions of the Contractor, or any subcontractor * * * resulting in injury to * * * the person or property (1) of the contractor’s employees, and (2) of all other persons. The performance of this indemnification will be assured by the contractor taking out, * * * liability insurance * * Here there is a clear inference of a requirement of fault on the part of defendant, either by acts of commission or omission.

The provisions on page 20 of the contract appear under the heading — “Responsibility of Contractor to Private Property Owners.” While not conclusive, this heading is somewhat indicative of the intent to be derived from the text which follows. The first paragraph refers to the tise to be made of private property. Immediately following appears this: “The contractor shall be * * * liable to land owners and other claimants for and shall hold and save harmless the company from * * * damages, injuries, costs, expenses, suits, * * * relating to persons or property or both arising out of or as a consequence of the construction of the * * * line.” Then follows the statement that this shall include damage to crops,’ fields, pastures, roads, fences, gates, springs, livestock, etc., but “without limiting the generality of the foregoing * * *.” In this enumeration the only specific reference to injury to persons is that “from blasting operations.” We cannot escape the conclusion that this portion of the contract was primarily intended to cover property damages to landowners, and that in toto it comprehends only the physical construction work on private land of third persons, defendant’s liability to landowners (and their privies, agents, etc.) therefor, and its indemnity of plaintiff for such liabilities (i. e. to landowners) whether for personal injury or property damage. Incidental to this is the covenant against damage to any telephone or power lines, etc., also owned by third persons. Certainly plaintiff here is not in the position of a third person landowner, nor were the injured persons here its agents or privies. These subsequent provisions should not be held to supplant the provisions already discussed from page 8, which specifically dealt with injuries to persons or property of (1) defendant’s employees, and (2) all other persons.

From a consideration of the contract as a whole, omitting for the present the requirement of insurance, we find that it does not constitute an agreement to indemnify plaintiff against results of its own negligent acts. Plaintiff insists that the contract does constitute an agreement to indemnify against damage “arising out of the acts” of defendant, regardless of the question of its negligence, and that it was certainly acting when its workmen moved the center wire with a block and tackle. The answer to this contention is that there is nothing in the record to show, aside from speculation, that the action of defendant’s employees caused the jumper wire to break loose from its moorings, or that their acts were a cause. In that situation, we cannot hold that the wholly unexpected energizing of the wire resulted from the acts of defendant’s employees. That question might be one for expert opinion but we have been given no light on the subject. As already stated, there is nothing in this record to show that the action of defendant’s employees was negligent and, on the contrary, it is stipulated that the same practice had been followed throughout the prior work. Plaintiff also suggests that defendant would be liable to indemnify it in case of defendant’s negligence even without a contract, so that the agreements must have some further meaning. What we have said above eliminates this contention, but, even so, one of two joint tort-feasors in pari delicto cannot recover indemnity (as plaintiff seeks here) but only contribution. Busch & Latta Painting Co. v. Woermann Construction Co., 310 Mo. 419, 276 S.W. 614; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788.

On the construction of the contract, no case is cited which is in any way controlling. Plaintiff cites, among other cases: Terminal R. Ass’n of St. Louis v. Ralston-Purina Co., 352 Mo. 1013, 180 S.W.2d 693; Avery v. American Automobile Insurance Co., 350 Mo. 395, 166 S.W.2d 471. In Ral-ston, the railroad built a spur track on Ral-ston’s property for the loading and unloading of products; Ralston agreed that it would not maintain any obstruction within certain specified distances above or adjacent to the track, and it agreed to indemnify the railroad from all loss “caused by obstmc-tions being closer * * * than specified herein[352 Mo. 1013, 180 S.W.2d 694.] Ralston did maintain an obstruction closer to the tracks than specified and an employee of the railroad was killed in a switching movement; this was apparently due both to a defect in the coupling equipment and to the close proximity of the obstruction. The widow sued the railroad and it settled with her; it then sued Ralston for indemnity and recovered. The case is clearly distinguishable. There, Ralston positively agreed to indemnify against a status, the existence of a physical thing, which could be determined at any given moment by a measurement. The right to indemnity did not necessarily depend on negligence or the lack of negligence on the part of either party. The court recognized the general rule of strictness in construing indemnity contracts; it merely determined that the proximity of the building was a cause of the death. We note also that the factual situation and the ruling in Buckeye Cotton Oil Co. v. Louisville & N. R. Co., C.C.A. 6, 24 F.2d 347, are very similar to those just discussed. The case of Avery v. American Automobile Insurance Co., 350 Mo. 395, 166 S.W.2d 471, cited somewhat incidentally, involved a suit against a liability insurance company and a defense of “other insurance”; the facts and the decision, so far as we can see, have no applicability here. While, as already stated, no cited case is controlling here, we have noted as somewhat analo-' gous and as tending to support our view, the following: Missouri District Telegraph Co. v. Southwestern Bell Telephone Co., 338 Mo. 692, 93 S.W.2d 19; Thompson-Starrett Co., Inc. v. Otis Elevator Co., 271 N.Y. 36, 2 N.E.2d 35; Batson-Cook Co. v. Industrial Steel Erectors, C.C.A. 5, 257 F.2d 410, and 175 A.L.R., note, pp. 29-32.

Alternatively, plaintiff insists that the contract requirement of liability insurance shows a clear intent to place all risk of major loss and damage on defendant; in this it emphasizes the requirements of “extending coverage” and of “contractual liability” insurance. This, as. we understand it, is argued as indicative of intent independently of the specific coverage actually contained in the several policies. We note that plaintiff has apparently not seen fit to proceed against the insurer. Apropos of this contention, we examine again the provision regarding insurance. It appears on page 8 of the contract following the agreement to indemnify plaintiff from all loss, damage, etc., “resulting from or arising out of the acts or omissions of the contractor or any subcontractor * * *.” The specific and only requirement of insurance (immediately following) is that “The performance of this indemnification will be assured by the Contractor taking out, * * As we construe the agreement, the insurance was thus only required to secure the agreement to indemnify against acts or omissions of the defendant or any subcontractor. The parties have so agreed. That being true, the requirement of insurance cannot be considered as evidencing an intent to broaden generally the contract language, or to extend it to cover negligence of the plaintiff.

In presenting copies of the policies to the court with a supplemental stipulation and without reserving any objections, defendant waived their admissibility. However, the question of their effect is always an issue. Looking at the policies: the automobile policy is wholly immaterial; Policy No. 16-101363, providing Workmen’s Compensation and Employers’ Liability Coverage, specifically excludes any employer’s liability assumed “under any contract or agreement,” and also (under that coverage) any obligation for which the insured might be held liable under the Workmen’s Compensation Law, as defendant most certainly was in these instances. That policy appears to be immaterial here. The remaining policy is the “Comprehensive General Liability Policy,” No. 18-3171. It provided, generally, coverage of the insured against legal obligations for damages from bodily injury to any person and caused by accident. (We note parenthetically that these two employees never fixed any legal obligation upon defendant except for workmen’s compensation benefits.) By its original terms this policy excluded liability assumed by the insured under any contract or agreement, except as defined therein, but by an endorsement its coverage was made applicable to the “legal liability of others assumed by the named insured” under the Kansas City Power & Light Company contract. We find no so-called “extended coverage” in either of the policies as that term is generally used. Extended coverage in the usual sense, as we understand it, merely serves to protect an additional person or persons if it is sought to hold him or them liable by reason of any occurrence initially and originally insured against; in other words, it extends the scope of the persons covered, but does not extend the coverage. 45 C.J.S. Insurance § 829(a), p. 895; Thompson-Starrett Co. v. American Mutual Liability Insurance Co., 276 N.Y. 266, 11 N.E.2d 905; of course, some omnibus clauses extending the definition of the “insured” may extend the coverage to that extent. Rainwater v. Wallace, 351 Mo. 1044, 174 S.W.2d 835. If counsel mean to say that the mere requirement of Public Liability Insurance “extending coverage” to plaintiff does, in and of itself, constitute a requirement of indemnity under our circumstances, the answer is that such a policy only covers, initially, liabilities of the original insured as established by law and, except for workmen’s compensation, there was no such liability here. Indeed, this “Comprehensive” policy, as seems customary, excluded (except for assumed liability) injuries to defendant’s employees. An extension of that coverage could not conceivably help plaintiff here. We are therefore remanded solely to a construction of the provision for assumption of the contract liability.

What we are specifically concerned with here is the phrase, — -“legal liability of others assumed by the named insured” un-' der this particular contract. It is perfectly obvious to us that the legal effect of this provision is found very simply by a construction of the original contract terms, and by determining whether or not defendant therein agreed (or assumed) to indemnify plaintiff against its own negligence. We have already held that it did not. The mere act of insuring some “assumed liability” cannot extend or broaden the expressed assumptions. The language of plaintiff’s counsel in the conclusion of their brief, that defendant- “was required to insure the indemnity provisions,” only corroborates our interpretation that the requirement and issuance of insurance could not and did not broaden the contract. The case cannot be decided upon any supposed “intent” evidenced merely by the insurance requirement, when the full contract language is before us for construction, and when the policy of insurance (approved by plaintiff) clearly expresses its coverage.

None of the cases cited by plaintiff are sufficiently close in fact or law to be controlling or even strongly persuasive. In both Monsanto Chemical Co. v. American Bitumuls Co., Mo., 249 S.W.2d 428, and Kansas City Stock Yards Co. v. A. Reich 6 Sons, Mo., 250 S.W.2d 692, one of the parties was required to carry insurance on property in which both were interested, presumably with contract adjustments for the cost of the premiums. It was merely held in substance that the insurance was carried for the mutual benefit of the parties and that, pro tanto, the collection of that insurance by the plaintiff owner, after loss, relieved the party in possession of the property (defendant) from the results of its negligence in that it constituted a satisfaction of the claim. The cited case of Cerny-Pickas & Co. et al. v. C. J. Jahn Co., 7 Ill.2d 393, 131 N.E.2d 100, adds nothing to the result of the cases just discussed. See also to the same general effect Newport News Shipbuilding & Dry Dock Co. v. United States, C.C.A. 4, 34 F.2d 100, and Buckey v. Indianhead Truck Line, Inc., 234 Minn. 379, 48 N.W.2d 534, which are not cited. The subject matter of the insurance in all those cases was specific property. In our case we are concerned with Ihe liability assumed under a contract, and we go right back to the contract to determine what was assumed. The following cases may be noted (although the factual situations differ from ours) as indicating generally that a requirement of liability insurance in a contract does not, per se, constitute an indemnifying agreement or broaden an indemnity already included. Finkelstein v. Majestic Realty Corp. et al., 198 Wisc. 527, 224 N.W. 743; Sinclair Prairie Oil Co. v. Thornley et al., C.C.A. 10, 127 F.2d 128; Westinghouse Electric Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill. 429, 70 N.E.2d 604.

We do not reach certain other points briefed by the parties. We conclude that the judgment in favor of plaintiff was “clearly erroneous” (Section 510.310 RS Mo 1959, V.A.M.S.) and it is reversed, with directions to the trial court to enter judgment for the defendant. It is so ordered.

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Wallace W. HUMES, Respondent, v. Dr. Carmen N. SALERNO, Appellant.
    No. 48510.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Dec. 11, 1961.

      Carter, Fitzsimmons & Brinker, Lee M. Carter, Clayton, for appellant.
    Hal B. Coleman, Coleman, Ross & Cekov-sky, Clayton, William L. Mason, Jr., St. Louis', 'for respondent.
   BARRETT, Commissioner.

The plaintiff, “Wally” Humes, is a professional free-lance jockey and the defendant,,Dr., Carmen N. Salerno, is an owner of race horses. In March 1959, Dr. Salerno employed Wally on a part-time, after-hours basis to “pony” three of his race horses at his farm on Charbonnier Road, preparatory to the races at Cahokia. In the language of the race track to “pony” a horse means that a jockey rides a saddled “stock” horse and leads or controls the haltered raite horse with a halter shank, a single rein attached to a chain, the chain in the horse’s mouth, across its nose or under its chin. The jockey controls the race horse by holding the rein near the chain with the horse’s head close to the jockey’s hip and always back of the pony horse’s head. In this manner the jockey walks the race horse around the track, then jogs it around and finally gallops the horse five or six times around the track.

On March 23 Wally appeared at Dr. Salerno’s farm and “poneyed” the horse Lisa’s Lad, then the groom handed him the stallion, Sal’s Son, with the halter shank chain through his mouth. Wally was not familiar with this horse, had no prior experience with him and was given no instruction or warning other than to gallop him around the track five or six times. He walked Sal’s Son around the track once, jogged him around once and then successfully galloped him five and a half times around the track. At that point in the ponying, as they came into the final turn, Sal’s Son suddenly “went into a rage” and “nailed” Wally’s right leg between his teeth, the horses went off the track, the stock horse was knocked down and Sal’s Son hung onto Wally’s leg, stumbled and “still had me in his mouth, on the ground, and growling like a lion.” To recover damages for his resulting injuries Wally instituted this suit on the theory that Dr. Salerno knowingly and without warning furnished him with a vicious and dangerous horse. Upon the trial of the cause a jury found the issues for Wally and fixed his damages at $32,000 and Dr. Salerno has appealed. The doctor’s first and principal claim is that the trial court should have directed a verdict in his favor because there was insufficient evidence to support a finding that his racing stallion had an abnormal propensity to injure persons and that he had not manifested such propensity “prior to the accident as to impute knowledge of it to the defendant.”

Race horses are spirited and tem-permental, even unpredictable, stallions more so than mares and geldings, but, Wally said, “It is just temperament like people.” He also said that on this occasion the conduct of Sal’s Son was unusual, in his seventeen years as a jockey he had not had a comparable experience. But in addition to the particular incident and Wally’s description of it another jockey, Edgar Wallace, had exercised Sal’s Son in 1956 and he said, “You had to watch him and have a figure 8 on him. He was real rough to gallop and he would try to bite you, for another thing. * * * He has tried to bite me while I was on his back and when I was off of him and holding him. * * * Sometimes he turns around and nips at your foot but he couldn’t bite me because he had a figure 8 on him; he would have been able to if he hadn’t, that is the reason we used that.” Furthermore, Edgar said, “he would try to paw you with his foot, either one,” and when galloping he had seen him try to “savage” (a horse-racing term meaning to bite or attack) another horse. It is not necessary at this point to search out other evidence, in these circumstances, as the jury could and did find them, Sal’s Son was a vicious horse (Merritt v. Matchett, 135 Mo.App. 176, 115 S.W. 1066; Maxwell v. Fraze, Mo.App., 344 S.W.2d 262), and the only question is whether there is also evidence from which the jury could reasonably draw the inference that Dr. Salerno had actual or constructive knowledge of the fact. State ex rel. Kroger Co. v. Craig, Mo. App., 329 S.W.2d 804, 809; Clark v. Missouri, K. & T. Ry. Co., 179 Mo. 66, 77 S.W. 882; Alexander v. Crochett, 233 Mo.App. 674, 124 S.W.2d 534. In addition to these cases, other cases and the general rules are set forth and collected in Clinkenbeard v. Reinert, 284 Mo. 569, 225 S.W. 667, 13 A.L.R. 485; Rolleg v. Lofton, Mo.App., 230 S.W. 330; 3 C.J.S. Animals 148, p. 1248; 2 Am.Jur. Animals, Sec. 48, p. 728 and the annotations 15 A.L.R.2d 1313, 17 A.L.R.2d 459.

The jockey, Wallace, on cross-examination said that he had complained of Sal’s Son’s conduct, and, of the horse’s trainer, Clark, he said, “He knew the horse was mean.” Sal’s Son had been under the. care of a veterinary in December 1958 for a bowed tendon and a “bad case of thrush” and then or later had been placed on the “vet’s list” which meant that he could not run on certain tracks. In any event, when Wally was admitted to the osteopathic hospital Dr. Salerno in his first conversation said, “He told me, ‘Wally this should never have happened. If I had been out there, I would have never have let you take the horse out there. You should have had a figure 8 or a nose band on.’ ” The doctor said the same thing to Wally’s wife and brother and in another conversation he told them that just the day before Wally was injured his nephew was ponying Sal’s Son and the horse tried to bite him and he said, “I really worked that horse over.” The nephew’s and Dr. Salerno’s interpretation of this episode was that the nephew was-ponying Sal’s Son and “the shank slipped out of his hand and the horse just pulled away from him and he stood there so I hollered at Bobby, I said, T will be right over. Stay right there. Just try to bring .him over there. Stay over there so he don’t run off,’ ” and then the doctor said, “I walked on up and grabbed the hors'e'by' the shank and I said a few things which 11 don’t want to repeat and I yanked on the’shank a few times and I turned on ' him this way (indicating) and I turned him' around this way so he could get to walking and I handed him to Bob” and he went on. As to his first conversation with Wally, he said that he asked Wally what happened, Wally answered, “ ‘The horse bit me.’ ” And the doctor said, “ ‘It should never have happened, if I had been there it might not have happened.’ I said, ‘Couldn’t you have used the figure 8? ’”

Sal’s Son was born in 1953, raced as a two-year-old, and Dr. Salerno raised, trained and raced him throughout his career and so he knew the horse as no one else could. The jockey, Wallace, testified to the horse’s prior bad disposition and attempts to bite, there was the episode of the previous day, the doctor’s hospital conversation and, admittedly, the vicious attack on Wally. In all these circumstances the jury could reasonably draw the inference of knowledge of the horse’s vicious propensities on the part of the doctor. Merritt v. Matchett, supra. The court summarized the situation in dealing with the case of a “muley cow” goring an elderly gentleman as he fled from a sidewalk bench and attempted to escape into his yard at 7614 North Broadway: “It is not essential to the owner’s liability that he should have notice of the particular sort of act which produces the injury by an animal in a case like this. He must not wait until his dog bites somebody before taking notice of his dog’s conduct, where it has been such as to warn a man of ordinary prudence that the animal is ferocious or vicious in disposition.” O’Neill v. Blase, 94 Mo.App. 648, 667, 68 S.W. 764, 770.

Since, upon the grounds urged, the court did not err in overruling the appellant’s motions for judgment, he contends that he is entitled to a new trial because the court (a) permitted plaintiff’s counsel to impeach his own witness, Billeaud, and in so doing to indulge in inflammatory charges of misconduct on the part of the defendant, (b) permitted plaintiff to call the court bailiff to testify that he saw defendant speak to witness Billeaud, thereby implying that defendant was guilty of misconduct, and (c) permitted plaintiff’s counsel to argue that his client’s friends were afraid to come to court and testify in his behalf for fear of losing their jobs. These matters are all related and stem from one trial episode.

The plaintiff called as a witness a jockey, Charles Billeaud, and, without equivocation or qualification, he testified that he had known Sal's Son well, had both exercised the horse and ridden him in six or seven races at Cahokia and Fairmoünt in 1955 and 1956. He testified that the horse, Sal’s Son, would “sulk” on him, throw him under the fence an “try to balk at the finish wire.” He was always a troublesome problem at the starting gates, he would “fight in the gates” and “tried to flip on me * * * fall over backwards and rear up and dive into it” and when he did go through the gate he left in “a sun fish * * * get up in the air and do a wiggle, a twist with you and try to drop you and he dropped me between him and the four horses * * Because of his conduct at the gate it was necessary “to school him” repeatedly. In the paddock he reared up and struck at the “jennet” (the groom), tried to paw him with both feet but Billeaud grabbed the shank and the horse “kicked back on me * * * and he put me in the hospital.” On one occasion Sal’s Son “flipped” Bil-' leaud, broke the saddle off, and horse and jockey fought bare back. On another occasion the horse did a “sun fish” at the starting gate, “twisted and dropped me and when I hit the ground he tried to savage me” and the jockey was compelled to roll under the fence. He tried to “savage” the starter while he was being schooled. He said that the horse would run with his ears pinned back (an indication that a horse is about to bite or “savage” in some other manner) and “You just couldn’t hit him. * * * Because he was mean. The only thing I can say is, he wouldn’t take it.” And finally, Billeaud said that “we” didn’t know what was wrong with him, that is, “The trainer and I and the man that owns him.” He said that he had discussed these matters with Dr. Salerno “More or less. The trainer would discuss it more than I would.”

After some preliminary questions on cross-examination, counsel asked Billeaud whether 1955 was the first year Sal’s Son appeared on the tracks (he was born in 1953 and was a two-year-old in 1955), and he said, “No, I don’t believe it is,” he was “pretty sure” the horse was a three-year-old in 1955. And then there were these questions and answers (all emphasis supplied) :

“Q. Are you quite certain that it was Sal's Son that threw you? A. Sal's Son?
“Q. Yes. A. No, it was Sal’s Boy.
“Q. It was Sal’s Boy that threw you? A. You said Sal’s Son.
“Q. Sal’s Son is the horse that is on trial here.”

At this point there was this interjection by the court: "Let’s don’t have any coaching or any display. I am sorry to interrupt. Proceed.” Then Billeaud said that it was Sal’s Boy who “savaged” him in 1956, that all along he thought plaintiff’s counsel was talking about Sal’s Boy, Sal’s Son’s “brother.”

At this juncture counsel for plaintiff said, “This certainly takes me by surprise,” and he requested and was granted permission to cross-examine the witness. Counsel reviewed with the witness some of his testimony on direct examination and pointed out that the questions and answers had all plainly referred to Sal’s Son. And then he said, “And I will ask you this, while you were looking at him (defendant’s counsel) if you could see the gestures made by this man (Dr. Salerno) back here? Could you see that? A. Yes, sir.

“Q. Who is that man? A. Dr. Salerno.
“Q. Could you see him making gestures ? A. I was mostly looking at you and him (defendant’s counsel). * * * I heard the Judge say something and I seen his hand move hack there.
“Q. You saw his hand move? A. Yes. * * *
“Q. Didn’t it give you a number? A. A number ?
“Q. That is right, by fingers? A. No, sir. * * *
“Q. Isn’t it a fact, that while you were looking at (defendant’s counsel) and he was asking you how old the horse was when you ran it and you said three years old and Dr. Salerno held up two fingers and you changed it to two years old? * * * A. I noticed he was moving but I didn’t notice about the fingers, no, sir.”

Then counsel developed the fact that Bil-leaud was a free-lance jockey, that he tried to please the owners, otherwise he would get no mounts. Later, when asked by defendant’s counsel whether he was afraid to testify, he said, “I was a little afraid, yes, sir. My wife didn’t want me to come up.”

Somewhere in the course of this particular testimony there had been a recess and plaintiff’s counsel propounded these questions to Billeaud:

“Q. Isn’t it true that Dr. Salerno walked by you when you were seated with Mr. Barnes and he looked down at both of you and he said, ‘Take it easy and watch what you say’ ? Isn’t that true? A. No, sir.
“Q. He didn’t say that ? A. Jimmy was talking to me real loud and he (Dr. Salerno) said, ‘Take it easy. Don’t get excited,’ and he slapped him on the shoulder.
“Q. He didn’t say, ‘Watch what you say’ ? A. No, sir.”

It was at this point that plaintiff called the bailiff who said that he saw Dr. Salerno talking to Billeaud and waving his hands but he did not hear the conversation.

Dr. Salerno had this to say with respect to all these matters :

“Q. Do you know him (Billeaud) so well that you can sit back here where you were seated and shake your head and indicate answers from the witness stand ? A. I wasn’t indicating any answers to that gentleman.
“Q. What were you doing when you held your fingers up? A. It was an emotional thing. He was saying that the horse was three years old in ’55 and the horse zvas only two years old in ’55 and he was talking about the wrong horse.
“Q. So you gave him the right signal? A. No, I didn’t. * * * The horse he was talking about was three years old.
“Q. And you told him it was two years old ? A. If he listened to me he would have had the right horse.
“Q. If he listened to you he would have come up with the right horse ? A. Yes, he would have had the right horse.”

In these circumstances the appellant’s noted objections may be disposed of summarily. While a jockey would not be expected to remember the 800 to 1000 horses he sees in a season, it is not at all likely that he would forget or be confused about Sal’s Son and the two seasons with him he so graphically depicted on direct examination. Even so, plaintiff’s counsel in apparent good faith relied on the witness and that he was “surprised,” perhaps shocked, may not be doubted, and the court did not err in permitting plaintiff to cross-examine him. Myers v. Moffett, Mo., 312 S.W.2d 59; Ryan v. Campbell “66” Express, Mo., 304 S.W.2d 825. It may have been inadvisable, perhaps improper, to call the bailiff as a witness but he merely testified to the fact that he saw Dr. Salerno talking to Bil-leaud and waving his hands, a fact not really denied by anyone, and, the trial court having considered the matter, it may not be said that the incident was of “such serious import as to take it outside the area of judicial discretion, as a matter of law.” Rovak v. Schwartz, Mo., 339 S.W.2d 756, 758. As to counsel’s argument, the circumstances speak for themselves and it is not necessary here to characterize the incidents, Billeaud did say, “I was a little afraid, yes, sir. My wife didn’t want me to come up.” The significant incidents were in open court, most of them not even seriously denied, and, an “emotional thing” or not, there was indeed exasperating provocation for the conduct and argument of plaintiff’s counsel. And, again in the circumstances, the trial court did not abuse its discretion or err in refusing to grant a new trial upon the grounds assigned. Pritt v. Terminal R. R. Ass’n of St. Louis, Mo., 251 S.W.2d 622, 625-626.

Some of these matters, unfortunately, may have entered into the jury’s award of damages and the meritorious question upon this appeal is whether the $32,000 verdict is excessive, and, therefore, under the general rules (Honeycutt v. Wabash R. Co., Mo., 337 S.W.2d 50; Breland v. Gulf, M. & O. R. Co., Mo., 325 S.W.2d 9, cases cited by the respondent) subject to remit-titur by this court. The plaintiff’s injuries were all to his right leg below the knee. From the horse’s teeth there were four or five puncture wounds in the calf of his leg, these wounds have healed but the prints of the teeth remain and from the bite there is some “irreversible damage” to leg muscle. Wally was first admitted to an osteopathic hospital where antibiotics, antitetanus and sedatives were administered. There he underwent his first surgery to repair the lacerations and “hematomata.” This operation consisted of “plastic repair of musclature and teflon implant.” There was other routine treatment and other injuries were diagnosed, but on March 28, 1959, he was transferred to St. Luke’s Hospital. Among his other injuries there was also a fracture of the right fibula, two or three inches below the knee, the leg was placed in a cast and on April 23 he was released from the hospital on crutches with his leg in the cast and on “limited ambulation.” The cast was removed April 25 and dressings were continued and he was off the crutches on June 17. The fractured fibula has “soundly healed and in normal alignment.”

By June 17, however, it was definitely established that there was also an injury to the superficial peroneal nerve in the area of the bite and his previous surgery. He returned to the hospital for two days for further treatment and observation to await the possibility that the nerve might heal. In the meanwhile his leg was supported by a brace to overcome “this dropping of his foot.” The brace was worn for several months but there was painful and persistent hypersensitivity all over the area and finally it was established that due to the nerve injury a neuroma had formed, a tumor-like mass within the substance of the superficial peroneal nerve. On March 1, 1960, he was re-admitted to St. Luke’s Hospital and under local anesthesia “a fairly large neuroma * * * about the size of my little finger” was removed. The incision, which has healed, was fourteen inches long and in removing the neuroma this portion of the nerve was “dissected out” and “the effect of removing the neuroma was successful.” He was released from the hospital on March 5 and is yet under the care of his orthopedic surgeon. There may be another small neu-roma in another area and it is possible that it will have to be removed. '

As indicated, there is some irreversible muscle injury and the calf of his leg has atrophied one inch. Because of the muscle and nerve injury there is some foot drop. It is the opinion of the doctor that the described injuries are permanent and there is “some impairment in his ability to ride.” The doctor proposes continued treatment, particularly therapy, but “he is ambulatory and working” and eventually will be able to do without the leg brace. He has had medical expense of approximately $1,000 to $1,500 (the court has been compelled to unearth all this information incidentally). At the time of the injury his full-time employment was as an automobile salesman at $125 a week and he lost one month’s pay. At the time of the trial he had been employed for a month by a. company selling prefabricated houses and was being paid $100 a week. The only evidence as to his earnings as a jockey was that in the August to October 1958 season he earned “two or three thousand, something like that.” He is now thirty-seven years old, has been a jockey since age sixteen, and there is no evidence as to how long he may be able to follow that part-time occupation.

From this brief résumé of the plaintiff’s injuries it is obvious that he has sustained a serious and painful injury, and his evidence is undisputed. Nevertheless, he has not lost a leg (Petty v. Kansas City Public Service Co., 1946, 354 Mo. 823, 191 S.W.2d 653) and, even though he has permanent injury, he has not lost the use of a leg. Mayor v. St. Louis Public Service Co., Mo.1954, 269 S.W.2d 101. In short, considering all the factors, including the persistent decline in the purchasing power of the dollar, this verdict is excessive by at least $8,500. Bowyer v. Te-Co., Inc., Mo 1958, 310 S.W.2d 892, 900-901.

If, therefore, the plaintiff will within fifteen days from the date of the filing of this opinion, file in this court a remittitui of $8,500, the judgment will stand affirmed as of the date of its rendition for the sum of $23,500. Otherwise, the judgment is reversed and the cause remanded.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, G, is adopted as the opinion of the Court.

All concur.


text:
    Edward A. FELD, Respondent, v. Maurice FRANKEL and Sylvia Frankel, Appellants.
    No. 48359.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Dec. 11, 1961.

      Heege & Heege, George Heege, III, Clayton, Joseph G. Stewart, St. Louis, of counsel, for appellants.
    George R. Gerhard, St. Louis, for respondent.
   BARRETT, Commissioner.

In this personal injury action by a tenant to recover $27,500 damages from his landlord there was a jury verdict for the defendants, the trial court granted the plaintiff-tenant a new trial and the defendant-landlords have appealed. It is the appellants’ contention that the court erred in submitting the case to the jury because the plaintiff “failed to adduce substantial evidence to support his theory of the case” in that he failed to show “that a dangerous condition existed which defendants would be required to repair or of which they would be required to warn” a tenant. In this connection it is urged that there is no substantial evidence from which it could be said that the defendants knew or should have known of the condition in time to have repaired it or to have warned plaintiff. In any event, it is said that the plaintiff had full knowledge of the dangerous condition and failed to observe it, especially when there was an equally convenient safe way for him to travel, and, therefore, that he was guilty of contributory negligence as a matter of law.

The appellants, Maurice and Sylvia Frankel, have owned a brick building at the corner of Eiler Street and Virginia Avenue since 1954. On the ground floor there is a barbershop and a tavern and on the second floor there are two three-room apartments. The plaintiff Feld and his wife operated the tavern and lived in one of the apartments; they became tenants of these parts of the premises through the assignment of a written lease from Feld’s brother-in-law, Haselhorst, in June 1957. There is a stairway'entrance to the apartment on Eiler Street and there is also a door and stairway entrance at the rear of the building. And across the rear of the building there is a five-foot concrete sidewalk which connects with the public sidewalk on Eiler Street. The sidewalk across the rear of the building slopes to the yard and because two of the five-foot slabs are about six inches lower than the other slabs of concrete there is “a depression . * * * six to seven inches deep” over an area “about four by six or seven” feet. During the night of December 31, 19S7, or the early morning hours of January 1, 1958, accumulated water in the depression froze. On January 1, about 4 a. m., the Felds closed the tavern and with friends went to church, ate breakfast and about 6 a. m. returned to the Eiler Street side of the building, intending to enter the apartment through the rear entrance. It was then dark, but Mr. Feld saw the morning paper three or four feet from the sidewalk in the grassy plot of the yard and as he walked towards the paper stepped on the ice, fell and was injured.

In these briefly noted circumstances it is not necessary to again set forth the well-known general rules concerning the tort liability of a landlord to his tenant. The general rules, with specific applicability to ice and snow, are set forth in an annotation, 26 A.L.R.2d 610, “Landlord’s liability for injury or death due to ice or snow in areas or passageways used in common by tenants.” And see in the same volume, 26 A.L.R.2d 468, “Landlord’s liability for injury or death due to defects in exterior stairs, passageways, areas, or structures ■used in common by tenants” and in 25 A. L.R.2d 364, an annotation covering injuries inside rented buildings. It is sufficient at this point to note that the Frankels had owned the property for more than five years, renting parts of it to different tenants and their use of the sidewalk at the rear of the building was in common. The consequence of the relationship and of this latter fact is that the Frankels, as landlords, were under a duty, in view of its contemplated use, to exercise reasonable care to maintain the sidewalk in a reasonably safe condition. And the problem here is whether under all the circumstances it could be found that that duty has been breached. 26 A.L.R.2d 1. c. 614; Taylor v. Hitt (Mo.App.), 342 S.W.2d 489. The appellants say that the concrete was not broken, that it merely sloped to the grass where it was lower at the west edge, and then they pose the question: “Does the fact that in the early morning of January 1, 1958, there was ice standing in the area created by the slope and the natural contour of the yard indicate a dangerous condition?” A case apparently in this category is Gibson v. Prudential Insurance Co. of America, 258 App.Div. 740, 15 N.Y.S.2d 100.

The difficulty with the appellants’ posture is that, as indicated, the plaintiff’s evidence was that two of the slabs of concrete were about six inches lower than the other sections of the concrete sidewalk, thus creating a “depression” six or seven inches deep over an area four by seven feet. The Felds moved into the property in June 1957 and Mr. Feld said “that depression, of course, was there to the best of my knowledge at the time it was taken over.” Mrs. Feld said, since they had lived there, that she had seen an accumulation of water in the area, “Many times I went out and had to sweep it off.” Upon this evidence as to the nature and cause of the “depression” a jury could find that the hazard and injuiy were caused by an accumulation of frozen water in a common passageway “where the condition has arisen artificially as a result of the landlord’s negligence in maintaining either the common passageway itself or some other part of the premises in a defective condition.” 26 A.L.R.2d 1. c. 614, 620. So far as applicable to this particular phase of the case the supported hypothesis of the plaintiff’s case was that “the sidewalk mentioned in evidence was depressed and therefore collected water and that such collection, if any, froze into ice in cold weather rendering said sidewalk dangerous and not reasonably safe for the use of defendants’ tenants.” In view of the known condition of sidewalks in general, the defect here may appear to be trivial and the condition common, but it was nevertheless a permissible inference that the condition was artificially created and that it was hazardous, at least on occasion. In quite similar circumstances, in Robinson v. Belmont-Buckingham Holding Co., 94 Colo. 534, 31 P.2d 918, it was held that the landlord’s negligence was a jury question. In Taylor v. Hitt, supra, a tenant washing clothes in an apartment house basement was injured when she stepped into or slipped on the depression forming the basement drain as well as the drain for her washing. The depression was fifteen inches square, three to four or five inches deep, and it was held that the landlord’s negligence was a jury question.

In the five years the Frankels had owned the property they had visited or inspected it three times and they said positively that there were no defects in the sidewalk, that it gently sloped to and was even with the grass. Mr. Frankel examined the walk “around Christmas of 1957,” and they were there again in the summer or December 1958. But, if the condition of the sidewalk and the depression was as Mr. and Mrs. Feld described it the Frankels obviously should have had knowledge of the fact of the defect and its hazard. 32 Am.Jur., Sec. 694, p. 571; Peterson v. Brune (Mo.), 273 S.W.2d 278. The Eiler Street stairway may have been a safer entrance but the plaintiff was not bound to use it. Roman v. King, 289 Mo. 641, 645, 233 S.W. 161, 165, 25 A.L.R. 1263.

While Mr. Feld described and of course had seen the depression, he says that he had not seen ice or water collected in it even though “once or twice” he had seen his wife sweeping water out of it. He did not recall any rain or snow on the night of December 31, or even the day before, or in the morning hours of January 1. He did know that the temperature had dropped and that it was much colder when he left the tavern in the morning. In describing his fall Mr. Feld said that he was walking at a normal gait, that he had walked eight or ten feet from the corner of the building, looking straight ahead and did not see the ice. The morning paper was “on the other side” of the ice and he had not reached the paper. After the fall he saw that the four by seven foot area was covered by about five inches of ice. During his cross-examination he said that he saw the ice before he fell and that as he walked across it he fell. Subsequently he said, “Well, I saw it only when I attempted to walk and the minute I set my foot down I hit the ice and just with that, well, my legs gave out from under me and I broke my leg, I slipped. Q. What I want to ask you is this: you say you saw the ice. How far away from the ice were you when you first saw it? A. I was just attempting to step on it, I was in the act of stepping on it.” On recross-examination there were these questions and answers:

“Q. What you’re saying now is that you saw the ice just as you got on it, is that correct? A. As I made an attempt to step down, yes. * * *
“Q. You didn’t see the ice as I understand it when you were some two feet away from it, is that correct? A. No.
“Q. You didn’t see it when you were a foot away from it? A. No, sir.
“Q. Which foot was almost on the ice when you saw it? A. The left foot.
“Q. And did you put the left foot down and then move your right foot before you fell? A. Well, that I couldn’t tell you definitely because it all happened in a split second. * * *
"Q. You may have taken one or two or three (steps), is that correct? A. Well, I may have but I doubt it very much because the minute I stepped on that ice my foot slipped out underneath me.”

In these circumstances it may not be said that the plaintiff was guilty of contributory negligence as a matter of law. O’Neill v. Sherrill (Mo.App.), 254 S.W.2d 263, 268; Taylor v. Hitt (Mo.App.), 342 S.W.2d 1. c. 496. “The mere fact alone, however, that the tenant is aware of the defective condition of the portion of the premises which it is the duty of the landlord to repair does, not, as a matter of law, make it contributory negligence to continue to use the same if it reasonably appears that he might safely do so with the exercise of care, so that, if a tenant is injured under such circumstances, the question of contributory negligence should be submitted to the jury.” Fabel v. Boehmer Realty Co. (Mo.App.), 227 S.W. 858, 859-860; 26 A.L.R.2d 1. c. 639.

The plaintiff and the defendants relied on the same climatological data. On December 31, 1957, .34 of an inch of liquid precipitation was measured at the weather bureau’s office on Twelfth and Market Streets. All except a trace (less than .005 of an inch) fell prior to 3:00 a. m. “and consisted of rain or rain and snow mixed and the snow melting as it fell. (Emphasis supplied.) Very light rain fell from 10:10 a. m. to 11:15 a. m. and ■very light snow from 11:25 a. m. to 2:10 p. m. Only a trace an amount too small to measure fell during the latter two periods. * * * The temperature was above freezing during most of the morning of December 31st ranging from 34 to 38 degrees prior to 11 a. m. but started falling before noon and had dropped to 30 degrees at 12 p. m. It continued to fall throughout the afternoon and night. At midnight it was 15 degrees and at 6 a. m. the reading on January 1, 1958 was 12 degrees. * * * No precipitation was recorded on January 1st of 1958.” There was no other evidence as to the weather in general but the appellants say that from these records the jury could find “that with precipitation on the ground with the severe drop of temperature the general condition would be icy.” While these weather bureau records may explain the accumulation and freezing of water in this particular “depression” or even in other depressions over the city they do not support the defendants’ claim that there was evidence of a general or natural accumulation of snow or ice (Woodley v. Bush (Mo.App.), 272 S.W.2d 833) and we are therefore not concerned with the problem of whether the natural accumulation of snow and ice rule should be “subsumed” .(26 A. L.R.2d 1. c. 614) under the general duty of care imposed upon the landlord. In the Woodley case the weather bureau records showed “intermittent periods of freezing rain.and snow from the 19th of December, 1951, up to and including December 26, which was the day that the plaintiff fell,” as she walked across a grassy backyard, it may be added.

The important thing here is that the defendants offered and the court gave instruction 4 which told the jury that there was no duty on them “to keep the said sidewalk free of a natural and general condition of ice on said sidewalk, and if yon find and believe from the evidence that the plaintiff fell and was injured from a natural and general condition of ice on said sidewalk, and if you find and believe from the evidence that the said sidewalk was in a reasonably safe condition for use at the time plaintiff fell and was injured, except from a natural and general condition of ice thereon, then the Court instructs you that plaintiff is not entitled to recover and your verdict must be for the defendants.” As indicated, there was no evidence upon which to base this verdict-directing instruction and in the circumstances it may have been misleading and confusing. In any event it was erroneous and justified the court’s granting plaintiff a new trial. Gundelach v. Compagnie Generale Transatlantique (Mo.), 41 S.W.2d 1; O’Neill v. Sherrill (Mo.App.), 254 S.W.2d 1. c. 269; 88 C.J.S. Trial § 382(b) (3), p. 997. In this view of the appeal it is not necessary to consider whether other instructions were also erroneous, accordingly, the order is affirmed and the cause remanded.

BOHLING and STOCKARD, CG, concur.

PER CURIAM.

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

All concur.


author: HYDE, Chief Justice.

text:
    William HACKER (Employee), Appellant, v. CITY OF POTOSI (Employer), and Hardware Mutual Insurance Company (Insurer), Respondents.
    No. 48660.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1961.
    Rehearing Denied Dec. 11, 1961.
    William B. Quinn and James K. Moran, St. Louis, for appellant.
    Samuel Richeson, Dearing Richeson & Weier, Hillsboro, for respondents.
    Raymond I. Harris, Harris, Fortus & Anderson, Clayton, for Municipal Police Chiefs Assn, and North St. Louis County Municipal Peace Officers Assn., amici curiae.
    F. William Human, Jr., Ziercher, Tzin-berg, Human & Michenfelder, Clayton, for St. Louis County League of Municipalities, amici curiae.
   HYDE, Chief Justice.

Workmen’s Compensation proceeding in which compensation was denied by the referee and the Commission. The circuit court judgment affirming the Commission was affirmed by the St. Louis Court of Appeals. (Hacker v. City of Potosi, 340 S.W.2d 166.) We ordered the case transferred under Sec. 10, Art. V, of the Constitution, V.A.M.S.

Claimant, whose regular employment was with the Brown Shoe Company, was employed by the City at $2.50 per hour as a part-time police officer to be on duty on Friday and Saturday nights — “sometimes go on at eleven and work until daylight and sometimes I’d go on at seven and work until about one o’clock.” For this hourly pay, claimant furnished his own car. Claimant was a deputy sheriff of Washington County at the time he was employed and continued to be during his employment. Claimant said before he was employed he was called into a meeting of the City Council, at which the Mayor “stated that the reason that they wanted me was because I did have a commission and I could go out in the county and bring in people that violated the law and that’s why they wanted me as a police officer for the city.”

About 1:30 A.M., on the night of his injury, the Chief of Police of the City, Virgil Sutton, was in claimant’s car with him, parked on High Street which was also Highway 8. They saw a car, with California license plates, with one light out, go by at between 70 and 75 miles per hour, violating an automatic stop light. Chief Sutton said “let’s get him” and claimant drove aft•er the car, chasing it about a mile when it ■“turned off the highway down a small dirt road” which “led down to a small house.” Claimant said: “[W]hen we got to the car it was empty, the doors were open and the lights were on, and we pulled up behind the car, got out of our car and Mr. Sutton walked up to the other car and looked inside and there was no one there, of course we could tell that when we drove up, and we walked around behind the car and I walked out and was shining my flashlight around and just as I brought the flashlight around I noticed there was a house there, I hadn’t seen the house before, and just as I brought the flashlight around I saw a man on the porch and he shot, he shot me.” It was shown that the place where the car was found was about 1,700 feet outside the ■city limits. Other facts and the findings and conclusions of the Commission are set out in the opinion of the Court of Appeals and we refer to it for these matters. In the findings of the Commission it is stated that •claimant “approached the house” but the •evidence, hereinabove set out, does not support that finding. Instead it shows that •claimant was shot just as he brought his flashlight on the house which he had not seen before.

The Commission and the Court of Appeals decisions were based on the view that there was no causal connection between the work claimant was employed to do as a police officer of the city and his injury and therefore his injury did not arise out of his employment. It was also held that claimant was not injured in the course of his employment because he was acting beyond the scope of his employment in attempting to make an arrest outside the city limits. The Supreme Court of North Carolina expressed similar views in Wilson v. Town of Mooresville, 222 N.C. 283, 22 S.E.2d 907, 912, a case of a city officer pursuing a violator of speed laws beyond municipal boundaries into another town.

We have held that a police officer of a fourth class city (which Potosí was) has no authority to arrest without a warrant outside the city limits in nonfelony cases. (City of Advance ex rel. Plenley v. Maryland Casualty Co., Mo.Sup., 302 S.W.2d 28, and authorities cited; as to arrest with warrant see Sec. 98.540; statutory citations are to RSMo and V.A.M.S.) Therefore, making an arrest outside the city limits under the circumstances of this case would not have been incident to claimant’s employment with the city; and thus an injury received in making an arrest or attempting to make it could not be held to arise out of and in the course of his employment. It appears that this situation was recognized when claimant was employed because it seems to have been understood that only a deputy sheriff could go out in the county and bring in people and that one reason for his employment was to have an officer available who could make a lawful arrest outside the city limits. Therefore it must have been intended that if he went outside the city limits to make an arrest, he would be acting as a deputy sheriff under state laws and not as a police officer of the city.

However, in this case, claimant had not attempted to make an arrest when he was shot. He and the Chief were investigating the car which had been abandoned. Perhaps they only would have made an investigation of it for purposes of determining the identity of its owner as a basis for filing a complaint and obtaining a warrant. We know of no reason why they would not have authority to do this. There may be many circumstances under which police officers might have duties which would require their presence outside city limits. (See Sec. 79.-380 authorizing fourth class cities to own and police certain installations and institutions within five miles of the city limits; see also Sec. 79.430 concerning cemeteries within three miles.) Perhaps it might be necessary to take prisoners properly in custody to a safer place of detention in another city, to recover or transport city property, or to aid in emergencies due to accidents, as in Village of Butler v. Industrial Commission, 265 Wis. 380, 61 N.W.2d 490, 493, where a village marshal went to the scene of a highway collision just outside the village limits. After calling the sheriff’s office, he attempted to place a warning flare and was killed when struck by another car. Compensation was allowed on the theory that the marshal “must have deemed that an emergency existed which required the setting out of flares before officers of the sheriff’s office would arrive.” Therefore, the Supreme Court of Wisconsin held the finding that the marshal “at the time of his injury ‘was performing service growing out of and incidental to his employment by the respondent [village] and arising out of his employment’ is amply supported by the evidence in the case.”

A policeman of a city of the fourth class is empowered by statute to serve a warrant issued by the mayor or police judge anywhere within the limits of the county. Sections 98.540 and 85.620. He is a proper person to apply for and obtain a warrant especially where the offense is committed in his presence. Sec. 98.530, see also S.Ct. Rules 37.07, 37.08, 37.09 and 37.46, V.A.M.R. Surely it would be within his duties to go beyond the city limits to investigate and establish the identity of the offender in order to obtain a warrant and thereafter make a lawful arrest. If the activities in which the claimant was engaged at the time he was shot were consistent with his duties as a city policeman, coverage under the Act should not be denied because the officer might have had a further purpose which if carried out could constitute an unlawful act not arising out of and in the course of the officer’s employment as a'city officer.

If claimant was attempting to make an arrest, without a warrant, he could have been acting lawfully only in his capacity as a deputy sheriff. However, if he was only making an investigation to determine ownership and identity he could have been acting lawfully as a city police officer. In Corp v. Joplin Cement Co., Mo.Sup., 337 S.W.2d 252, we recognized the doctrine of “dual purpose,” in a case which depended upon whether an automobile trip, in which the claimant therein was killed, was undertaken for a strictly personal reason or was combined with a necessary business purpose of the employer. Likewise here we have a case in which claimant made a trip outside the city limits with his superior officer and at his direction and this trip properly could have been made for the purpose of determining the identity of the offending driver by proper means. (The chief of police could not properly have been there for any other purpose.) While claimant could have made it as deputy sheriff to arrest the driver without a warrant for violation of state laws in his presence, the evidence does not show that when he was shot he had attempted to make an arrest. Therefore, the issue should not be determined solely on the question of lack of authority to make an arrest, as a city policeman, when no arrest actually had been attempted. Our conclusion is that a proper purpose (to identify the offender) of claimant’s employer, the city, was at least a concurrent cause of the trip; and that compensation should not be denied because of the possibility that claimant also could have had in mind his authority as a deputy sheriff to make an arrest without a warrant and perhaps at some later time in the trip might have attempted to do so. This view “is in keeping with the rule that the Workmen’s Compensation Act should be liberally construed to effectuate its purposes.” (Corp v. Joplin Cement Co., supra, 337 S.W.2d 1. c. 255.) For the reasons stated, we conclude the evidence shows that the employee was on a dual purpose mission, that his work created the necessity for the travel and that his injury arose out of and in the course of his employment. Therefore, the award denying compensation is not supported by competent and substantial evidence on the whole record.

The judgment of the circuit court affirming the final award of the Industrial Commission is reversed and the cause is remanded with directions to the circuit court to set aside its judgment and enter a new judgment reversing the award of the Industrial Commission and to remand the cause to the Industrial Commission for further proceedings consistent with the views expressed in this opinion.

All concur.


author: STORCKMAN, Judge.

text:
    STATE of Missouri, at the Relation of E. M. STITES, Relator, v. Honorable Arthur U. GOODMAN, Jr., Judge of the Circuit Court of Dunklin County, Missouri, Respondent.
    No. 48846.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1961.
    Rehearing Denied Dec. 11, 1961.

      James A. Finch, Jr., Finch, Finch & Kne-hans, Cape Girardeau, John Flail Dalton, Dalton & Treasure, Kennett, for appellant.
    Joe Welborn, Briney & Welborn, Bloomfield, for respondent.
   STORCKMAN, Judge.

This is an original proceeding in mandamus to compel the Circuit Judge of Dunklin County to render judgment in accordance with the mandate of this court in Bloomfield Reorganized School District No. R-14, Stoddard County, Missouri v. Stites, Mo., 336 S.W.2d 95. The defendant in that case, F.. M. Stites,, undertook to erect a combination gymnasium and music building for the plaintiff school district under a written contract. The relator here is the defendant E. M. Stites. The parties will be generally referred to as they were denominated in the reported case. Controversies having arisen, the plaintiff school district filed suit for possession of the building claiming that the defendant Stites had violated the construction contract. On March 9, 1959, the trial court rendered judgment for plaintiff for possession, for liquidated damages against the defendant in the sum of $7,000 and for a credit of $4,344 in favor of the plaintiff for ■ Y'placement of. the roof in accordance with the stipulation of the parties. The trial court held that the defendant was entitled to recover 95 per cent of the contract price of $276,247 and $1,798.68 for extra work done. Giving effect to the debits and credits and the amounts paid by plaintiff on account of the contract price, the trial court rendered a net judgment in favor of defendant for $774.68. From this judgment the defendant appealed to the Supreme Court.

On May 9, 1960, the Supreme Court rendered its judgment reversing the judgment and remanding the cause with directions to enter judgment in accordance with the opinion of the court. The opinion' decided that the plaintiff was entitled to retain $7,-000 as liquidated damages a!nd $4,344 for the roof and that the defendant was entitled to $1,798.68 for extra work, all as found by the trial court. The Supreme Court found, however, that the architect had certified that the building was substantially complete, that the plaintiff had thereafter taken the building over and was using it, and that the defendant was entitled to the full contract price plus the amount due for extra work less the amounts paid on account, the other items of credit, and the sum expended by the plaintiff to complete the building. The motion for rehearing or to transfer to the court en banc was overruled June 13, 1960, and the mandate was issued accordingly.

Thereafter, the defendant filed in the Circuit Court of Dunklin County his motion for judgment pursuant to the mandate which motion is as follows: “Comes now defendant and states that under the mandate from the Supreme Court of Missouri this cause was remanded for entry of a judgment in conformity with the opinion, and he states that under the mandate of the Supreme Court he is entitled to collect the contract price, to-wit: $276,247.00 plus $1,-798.68 for extra work, less payments previously made, to-wit: $252,114.65, and also less liquidated damages in the amount of $7,000.00, the amount paid by stipulation for replacement of a portion of the roof, to-wit: $4334.00, and ‘less whatever sum has, in fact, been expended to finally complete the building.’ Defendant states that the facts are that no sums have been expended by plaintiff to complete the building, and that under the court’s opinion and mandate, he is entitled to collect the sum of $14,586.99, together with interest thereon at 6% per annum from the time when the school board terminated the contract, to-wit: June 25, 1957.

“Wherefore, defendant prays the court to enter judgment herein in his favor and against the plaintiff for the sum of $14,586.-99, plus interest at 6% per annum from June 25, 1957, together with the sum of $129.10 costs in connection with the appeal which the Supreme Court on July 11, 1960, taxed against plaintiff and in favor of the defendant.”

The relator Stites asserts, and there is no denial, that the school district in response to his motion for judgment admitted that it had expended nothing toward completion of the building, but asserted that it intended to do so in the future and requested that judgment be stayed until it did so. On March 27, 1961, the respondent overruled the defendant’s motion for judgment. Thereafter, Mr. Stites filed his petition in this court for a writ of mandamus which was sustained, and our alternative writ was issued requiring the respondent “to conduct a hearing to determine and adjudicate what sums, if any, the Bloomfield Reorganized School District No. R-14 had in fact expended as of May 9, 1960, (the date of this court’s opinion), to correct defective work and to complete the gymnasium and music building in accordance with the plans and specifications, and further that you render judgment in accordance with the mandate and opinion of this court in Case No. 47,-666,” or to show cause. The respondent has filed his return to the writ and the relator has answered the return.

The plaintiff contends that the opinion holds that it is entitled to a “completed building” and apparently assumes that it had an unlimited time to complete the building and claim its credits. Plaintiff’s petition,, filed July 24, 1957, alleged that it had elected to terminate the contract on July 1, 1957, because of defendant’s breaches of contract and that it was “entitled to possession of the same for the purpose of completing the construction of said building.” On August 5, 1957, plaintiff filed its ancillary petition for a temporary injunction in which it alleged that the defendant was interfering with the “plaintiff’s election and right to complete the construction” of the building and prayed that the defendant be enjoined so that the building could be used for the beginning of the 1957 school year. On August 5, 1957, a temporary restraining order against the defendant was issued. On November 22, 1957, the parties filed a stipulation wherein it was agreed that the plaintiff might enter and commence the use of the building and also stipulated for replacement of the roof at a cost of $4,344 to be charged against the defendant. Trial of the case was commenced in July 1958 and judgment was rendered March 9, 1959. At the beginning of the trial, the plaintiff voluntarily dismissed Paragraph III of its pleadings (in the nature of a counterclaim) wherein it sought $25,000 damages because of defendant’s failure “to do the construction work on said building in accordance with the plans and specifications”, and because the “defendant did faulty work thereon”. Nine items of alleged failures and faulty work were listed.

At the trial the evidence showed that on September 6, 1957, plaintiff’s architect, the defendant, and the attorneys for the parties went through the building together and that the architect “made up a list of what remained to be done.” This was referred to as the “punch list” and was introduced in evidence as plaintiff’s Exhibit Y. No evidence was offered, however, as to the cost of completing the items on the punch list. As to these items the opinion states, 336 S.W.2d loe. cit. 101: “As of September 21, 1957, the architect compiled a list of items (a punch list) necessary to finally complete the building in accordance with the plans and specifications. Aside from the defective roof (eliminated by the stipulation of the parties) the larger of this long list of items was ‘5 doors missing,’ replacing certain other doors with doors of another type wood, painting in places, grouting certain windows and numerous other small items. The district was entitled to a completed building, including these items, and the list establishes that the building was not complete. Nevertheless the architect had certified, as the contract contemplated, that there was ‘substantial completion’ of the building. And,, although the district had terminated the contract and had possession of the building, there was no proof, even on the date of trial, July 22, 1958, of what it would cost to replace or furnish a single one of the items on the punch list; there was not even proof that any of them had been supplied.”

' Paragraph III of plaintiff’s pleading having been voluntarily dismissed, the items on the “punch list” so far as the record shows, were the only ones needed to make the building conform to the plans and specifications. The architect had certified to the board that the building was substantially complete as of May 21, 1957. The building was substantially complete when it had reached the stage in its construction when it could have been put to the use for which it was intended even though comparatively minor items remained to be furnished or performed in order to make it conform to the plans and specifications of the completed building. Property Owners’ Materials Company v. Byrne, Mo.App., 176 S.W.2d 650.

The result is that at the time of the decision of this court on May 9, 1960, the school district had been in possession of the building for almost three years under an order and agreement relieving, and in fact prohibiting, the defendant from doing anything further with respect to the completion of the building. The items on the punch list were not substantial, and it was to be expected that the plaintiff would have long ago performed such of these items as was desired in order to complete the building if it desired to do so. The decision of this court might very well have ignored these items on the punch list because of the plaintiff’s failure to make proof of their reasonable value or the cost of furnishing them. Instead this court undertook to afford the plaintiff an opportunity to claim as a credit such items on the punch list as it had supplied during the time it was in possession and using the building prior to the rendition of the opinion of this court. For this reason, the opinion concludes as follows, 336 S.W.2d loe. cit. 102; “ * * * jn the state of this record it is not possible to confidently direct the entry of a judgment for the sums precisely due each of the parties. As indicated, the district is entitled to retain the liquidated damages allowed by the court, $7,000, and it is entitled to the credit, if paid, of $4,334 [$4,344] for the-roof. Mr. Stites is entitled to $1,798.68 for the extra work and he is entitled to recover the balance due on the contract price less whatever sum has in fact been expended to finally complete the building. Since these figures and computations do not plainly appear and are within the certain knowledge of the parties the judgment is reversed and remanded to the end that perhaps the parties may amicably compute these sums and if not that the court may enter a judgment in conformity with this opinion.”

The return of the respondent asserts that the school district is not undertaking to reinstitute the items of the counterclaim covered by Paragraph III of its pleadings which was dismissed prior to trial, but contends that it is entitled to a completed building including the remedying of defects,.and that this will require a hearing and an exercise of discretion on the part of the trial court which cannot be controlled by mandamus. The respondent is mistaken as to the scope of the inquiry on remand. It was limited to ascertaining the reasonable cost of punch list items which the school district had furnished at the time of the remand to make the building conform to the plans and specifications. The school district had then been in possession of and using the building for almost three years. It was the court’s purpose to terminate the litigation on the fairest terms possible and not to extend it endlessly. It is not the policy of the law to try lawsuits piecemeal. S.Ct Rule 55.45, V.A.M.R.; Section 509.420 RSMo 1959, V.A.M.S. The motion of the defendant should not have been necessary, but it certainly was sufficient to call the matter to the trial court’s attention and serve as the basis for an order requiring the parties to furnish such proof as they desired in connection with the entry of the judgment called for by the opinion and mandate of this court.

When a judgment is directed by the appellate court,, it is the duty of the trial court to enter it as directed, and mandamus to require a trial judge to enter a judgment in accordance with the mandate and opinion of the appellate court is a proper remedy regardless of the right of an aggrieved party to appeal. Section 512.160, subd. 5 RSMo 1959, V.A.M.S.; State ex rel. Robertson v. Kelly, 293 Mo. 297, 239 S.W. 867; State ex rel. Wattenbarger v. Lamb, 174 Mo.App. 360, 160 S.W. 55; State ex rel. Metropolitan Land Company v. Douglass, Mo.App., 83 S.W. 87; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857, 860; State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009.

In view of the apparent difficulty of the respondent and the school district in determining what should be done, we will spell out the judgment that should be entered pursuant to the mandate. As shown by the opinion, the defendant contractor is entitled to recover the contract price of $276,247 plus extras in the sum of $1,798.-68, making a total of $278,045.68. He has been paid on account of the contract price and extras the sum of $252,114.65, leaving a balance of $25,931.03. Against this, the plaintiff is entitled to a credit of $7,000 for liquidated damages and $4,344 for replacing the roof, for a total credit of $11,344.' This subtracted from the balance of $25,931.03 leaves a balance due the contractor of $14,-587.03. The contractor is entitled to this amount with interest from March 9, 1959, the date of the judgment in the trial court. If the school district on May 9, 1960, had in fact completed any of the items shown on the punch list, then the reasonable cost of such work or materials should be ascertained and the plaintiff would be entitled to a further credit for the amount so determined. Otherwise judgment in favor of the defendant and against the plaintiff should be entered in the sum of $14,587.03 with interest at six per cent per annum from March 9, 1959.

The peremptory writ of mandamus is ordered to issue.

All concur.