author: RUDDY, Judge.

text:
    STATE of Missouri ex rel. Karl G. MEYER, Elmer Boesel, Mrs. A. G. Merello, Raymond Kringer, Viola Fuchs, and Mrs. Pierre Belleville, Relators-Appellants, v. Robert KINEALY et al., Constituting the Board of Adjustment of the City of St. Louis, Missouri, and Paul E. Toelle, Respondents.
    No. 31803.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.
    Rehearing Denied April 12, 1966.
    Francis R. Stout, Richard M. Stout, Philip M. Sestric, William H. Crandall, Jr., St. Louis, for appellants.

      Stewart & Bruntrager, Joseph G. Stewart, St. Louis, for respondents.
   RUDDY, Judge.

This is an appeal by relators, appellants, from a judgment of the Circuit Court in a certiorari proceeding affirming an order of the Board of Adjustment of the City of St. Louis directing the issuance of a permit for the erection of an auto service station at 10055 Riverview Drive in the City of St. Louis, Missouri.

This property is located in North St. Louis and is bounded on the north by Spring Garden Drive and on the south by Old Chambers Road, which is no longer in use, but has never been vacated. The property fronts 195 feet along Riverview Boulevard and is irregularly shaped, approximately 150 feet in depth with a width of about 300 feet across the rear. Riverview Drive is the business route of U. S. Highway 66, a four lane highway, which runs in a generally north and south direction. The property is a short distance south of the Chain of Rocks Bridge and is in the vicinity of the City of St. Louis Water Works Plant. It lies at the bottom of a very steep hill. A drainage ditch runs through the property from northwest to southeast and is parallel with Spring Garden Drive and is about 85 feet south of the northern boundary of the property. The ditch drains the storm water and surface water on the property. There was evidence to show that the property is subject to flooding and at times one-third of the property is covered with water. At times the highway in front of the property becomes flooded and on occasions traffic cannot get through.

Paul Toelle and his ancestors have for over 100 years owned a substantial amount of land surrounding the aforedescribed property and also owned the property involved in this case. In 1946 he caused a portion of the land to be laid out in a subdivision known as Denness Hills and lots were sold by Toelle in this subdivision. This subdivision did not include any of the property involved but is close to it. The price range of the houses in the Denness Hills Subdivision is between $25,000 and $35,000. Other homes in the area sell for a price of $40,000 to $45,000. Immediately south of the property involved are houses in the price range of $13,950 to $14,950.

The property involved in this proceeding has been zoned as “A Residential” since 1950. On the property is an old frame building on the south end which has been there for 75 to 80 years and has been used at times as a saloon and store for the sale of fish. For approximately 35 years there have been two barns on the property used as livery and riding stables. Their use as livery stables existed prior to the zoning of the property as Class A Residential. Riverview Drive in the area of the property involved has been used by drag racers and along this drive many accidents have occurred. There was testimony by Mr. Toelle and others that before the property could be used for any construction purpose, whether residential or business, it would be necessary to construct and install a storm sewer along the ditch referred to and a minimum cost of constructing such a storm sewer would be $12,000. He did not know whether or not the property could be used for residential purposes if the storm sewer was installed. Mr. Toelle testified that he had an option to sell the property to the Mobil Oil Company who intend to build a filling station on the property involved which would entail a total investment of $100,000. There was some testimony that this was the best use of the property and would benefit the area. There was testimony that there were only three residential sites in the involved property and that the allocation of $4000 to each one of these lots to cover the cost of the sewer improvement would be impracticable since the homes in the area would have to stay within the $10,000 to $15,000 price range and the witness said this would be an impossible price with such a high cost for the land.

Some of the relators testified that there were no commercial buildings in the area and that a filling station of the type proposed would tend to ruin the beauty of the residential neighborhood. One of the re-lators testified that his lot was approximately a half block from the site of the proposed filling station and that the majority of the houses in his neighborhood would range from $30,000 to $40,000. It seems that the owners of all of these houses had purchased their property from Mr. Toelle.

Relator’s evidence also showed that the drainage ditch that crossed the property involved, drains a much greater area than the property in question; that much of the area referred to was formerly owned by Mr. Toelle or his family and that the cost of a drainage ditch should be allocated to these other properties. There was testimony that the Metropolitan Sewer District had a plan that would have eliminated the ditch and it seems that the plan would have avoided the expenditure of building an enclosed sewer in the ditch.

One witness testified that when she purchased the land on which her home stands, she and her husband were assured by Mr. Toelle that no filling station would be erected in the neighborhood.

There was some testimony to show that efforts had been made to have this property rezoned through a bill presented to the Board of Aldermen of the City of St. Louis and that the bill was “killed” in Committee. There was an exhibit, in the form of a letter from the City Plan Commission dated February 15, 1959, in which the Commission stated that the terrain difficulties in the involved property were no greater than those in other parts of the area and pointed out that the tract had the pronounced advantage of being relatively flat. It found that residential use was feasible and appropriate.

The hearing before the Board of Adjustment was the result of an appeal taken by Mr. Paul Toelle from an order of the Building Commissioner of the City of St. Louis denying his application for a building permit to erect an auto service station on the involved property.

The Board of Adjustment found, inter alia, “that the premises are located in the ‘A’ Single Family Dwelling District and on a busy thoroughfare” ; that “the property has been in the Toelle family for over 100 years and has been used as a saloon, store, confectionery and fish store. For the past 35 years, it has been used as a livery stable” ; that “the structures on the property * * * are fairly unsightly and detract from and have an adverse effect on properties in the surrounding area” ; that “horses have been and, are now, quartered on the property” ; that “the premises are located at the bottom of a steep grade in somewhat of a pocket” ; that the property involved and the “adj acent highway is flooded during rainstorms and prolonged rains” ; that this is caused by the open drainage ditch; that “before any new structure can be erected on this property, it would be necessary to spend” $12,000 for sewers to correct the flooding problem.

In its conclusion of law and decision it ruled “that under the evidence adduced that the petitioner established an unnecessary hardship within the meaning of Section 916.050(4); that to require strict compliance with the letter of the ordinance would deprive the petitioner of the reasonable use of his property because it cannot be used for the purpose for which it was zoned * *. The Board, therefore, grants the petitioner a variance within the terms of the Ordinance to use the property in question for service station purposes, under the plan submitted, such variance being within the spirit of the Code.” It further ruled: “Therefore, be it resolved by the Board of Adjustment that the decision of the Building Commissioner in refusing to issue this permit for the erection of an auto service station at 10055 Riverview Drive be reversed.” As we have said, the Circuit Court affirmed the order of the Board of Adjustment.

As has been shown the property involved is in the “A” Single Family Dwelling District. We need not detail the use regulations governing that district, hut it is sufficient to say that it is undisputed that the “A” Single Family Dwelling District does not include or permit filling stations. The City of St. Louis Zoning Ordinances place and classify filling stations under District “F” Local Business. The districts classified A, B, C, D, and E authorize a permitted use, respectively, as single family dwellings, two family dwellings, four family dwellings, multiple-family dwellings, and multiple-family dwellings including a permitted use as hotels. It is seen that the erection and operation of filling stations is not permitted under any of the zoning: classifications pri- or to “F.”

The legislative body of the City of St. Louis passed a comprehensive zoning code pursuant to the powers given it under the provisions of Chapter 89 RSMo. 1959, V.A. M.S. The Board of Adjustment was created by the legislative body of the City of St. Louis pursuant to § 89.080 of the aforementioned chapter. Section 89.090 specifies the powers of the Board of Adjustment and the provisions of said section (Par. 1) pertinent to our inquiry is as follows:

“(3) In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.”

The powers of the Board of Adjustment, specified in subdivision (4) of § 916.050 of the Zoning Code are similar in all pertinent respects to subdivision (3) (Par. 1) of § 89.090 RSMo. 1959, V.A.M.S. This provision of the ordinance must be consistent with the Enabling Act, namely, § 89.090, supra; if not, that which is inconsistent is a nullity. State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030.

While the brief of the Board of Adjustment and Paul Toelle, owner of the premises, does not urge that Paul Toelle is entitled to a permit to erect the filling station upon his premises by virtue of the nonconforming use provision of the ordinance, which provision we see no need to recite here, nevertheless, we do feel the need to make some comment on this because of the finding by the Board of Adjustment that the property, prior to the enactment of the Zoning Code and since, has been used as a saloon, store, confectionery and fish store, and for the past 35 years has been used as a livery stable. It is undisputed that the property was not being used at the time of the adoption of the Zoning Code as a filling station and consequently Paul Toelle is not entitled to a permit to erect a filling station by virtue of the nonconforming use provision of the Zoning Code. In re Botz, 236 Mo.App. 566, 159 S.W.2d 367, l. c. 372.

The Board and Paul Toelle contend that the evidence shows that an unnecessary hardship exists and that the Board acted within its jurisdiction and did not abuse its discretion in granting a permit to erect a service station, because for the reasons given by the Board in its findings and conclusions the property is not suited for any residential use. These respondents say that the property is useless for the purpose for which it is zoned or for any residential use and that the highest and best use for the property is as a service station.

The respondents say that the scope of our review is limited to a determination of whether, upon the whole evidence, there is competent and substantial evidence to support the findings and decision of the Board of Adjustment. The scope of our review is not so limited. In the case of State ex rel. Nigro v. Kansas City, supra, the Supreme Court in discussing the jurisdiction of the Circuit Court when reviewing a decision of a Board of Zoning Appeal, said:

“Looking to the statute it is apparent that the court is not vested with the power to supervise the discretion lodged with a board of zoning appeals; it is not authorized to entertain a hearing de novo and then make such order as in its opinion the board should have made. The court’s authority is plainly limited to correcting illegality. If the court finds the order under review illegal, in whole or in part, it may reverse or affirm, wholly or partly, or may modify, the order, as may be necessary in order to correct the illegality.” (Emphasis ours.) (27 S. W.2d l. c. 1033).

The same powers and limitations imposed upon the Circuit Court in its review of the decision of the Board of Adjustment are applicable to this court in our review of the decision of the Circuit Court in the cer-tiorari proceeding. Brown v. Beuc, Mo.App., 384 S.W.2d 845, l. c. 851.

We will assume, without so ruling, that the Board of Adjustment was correct in finding that an unnecessary hardship existed within the meaning of § 916.050 (4) of the Zoning Code, nevertheless, we find, as we shall point out, that the Board of Adjustment exceeded its power and authority when it found, that to require of Paul Toelle strict compliance of the ordinance would deprive him of the reasonable use of his property “because it cannot be used for the purpose for which it was zoned” and under the guise of a variance permits the use of the property involved “for service station purposes.” This action constitutes a change of the zoning of the property involved, which was beyond the jurisdiction of the Board of Adjustment. In doing so, the said Board usurped the legislative zoning powers of the Board of Aldermen of the City of St. Louis.

In a case recently decided by this court, State of Missouri ex rel. Sheridan, et al. v. Hudson, et al., 400 S.W.2d 425, we reached the conclusion, as did both the Board and the trial court, that because of the obvious practical difficulties which prevented the owners from economically using the land for single family dwellings, to deny them the right to use it for multiple dwellings would be tantamount to a taking or confiscation of their land in the constitutional sense, citing Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833.

Despite this conclusion reached by us, we held that the power of the Board of Adjustment did not extend to granting a variance for a nonconforming use. Our authority for so holding is found in the case of State ex rel. Nigro v. Kansas City, supra.

As pointed out in our case, the language of the ordinance under consideration in the Nigro case was substantially the same as that contained in § 89.090, subd. 1(3). The same is true of the Zoning Code Ordinance of the City of St. Louis, to which the Board of Adjustment of the City of St. Louis must look for its powers.

In delineating the powers of the Board of Adjustment (named the Board of Zoning Appeals in Kansas City) to grant a variance for a nonconforming use the Supreme Court said:

“ * * * The board of zoning appeals is intrusted with the duty of enforcing the provisions of the ordinance; it is an administrative body, without a vestige of legislative power. It cannot therefore modify, amend, or repeal what the ordinance itself designates as its ‘general rules and regulations’; the power to do that is conferred upon the common council of Kansas City, and it can delegate no part of that power. The ordinance does not purport to authorize the board of zoning appeals to modify, amend, or repeal any of its provisions; but it does permit and direct the board to modify or partially suspend a rule in its application to a particular case where strict enforcement would ‘by reason of exceptional circumstances or surroundings constitute a practical difficulty or unnecessary hardship.’ This provision must be read in connection with section 7 of the Enabling Act, which provides that the board of adjustment shall have the power, ‘where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.’ In other words, if in a specific case the enforcement of a regulation according to its strict letter would cause unnecessary hardship and the board can by varying or modifying the application of the regulation obviate the hardship and at the same time fully effectuate the spirit and purpose of the ordinance, they are authorized to so vary or modify the application. But the board can in no case relieve from a substantial compliance with the ordinance; their administrative discretion is limited to the narrow compass of the statute; they cannot merely pick and choose as to the individuals of whom they will or will not require a strict compliance with the ordinance. State v. Christopher, 317 Mo. 1179, 1196, 298 S.W. 720.” (27 S.W.2d l. c. 1032).

In the instant case the effect of the order of the Board of Adjustment is to rezone the property involved from the classification of district “A” Single Family Dwelling to district “F” Local Business, and it is quite apparent from the language of the Board of Adjustment in its conclusions of law and decision that it intended to change the zoning of the property when it said that “it cannot be used for the purpose for which it was zoned.”

In the Nigro case, supra, the court further said:

“ * * * What he (respondent) in fact asked the board of zoning appeals to do was to ‘rezone’ the corner on which his property is located, that is, change the boundaries between the residential district in which it is situated and the adjoining business district so that his lot would fall within the latter district. This, as already pointed out, the board was powerless to do; the common council only is authorized to change the boundaries. Section 5, Enabling Act. If the board has heretofore attempted such rezoning, as the record suggests, its acts in that respect were nullities.” (27 S.W.2d l. c. 1032).

We have quoted rather copiously from the Nigro opinion in order to show the Board of Adjustment that it cannot amend or repeal any zoning ordinance or rezone any property or amend or repeal any rule or regulation of the Zoning Code. The power to amend or repeal any provision of the Zoning Code belongs to the legislative body of the City of St. Louis and not to the Board. The Board is without a vestige of legislative power. State ex rel. Nigro v. Kansas City, supra; Brown v. Beuc, supra, and cases cited therein.

As pointed out in our recent case of State of Missouri ex rel. Sheridan et al., v. Hudson, et al., supra, we are bound to follow the decision of the Supreme Court in State ex rel. Nigro v. Kansas City, and in view of that decision, we are constrained to hold in the instant case that the Board of Adjustment had no power to grant Paul Toel-le a permit to erect a filling station upon the involved property because by doing so it attempted to change the zoning from district “A” to district “F.”

For the reasons indicated heretofore, we find that the Board of Adjustment exceeded its authority in granting the variance and in making its finding and order. Therefore, the judgment of the Circuit Court should be reversed and the cause should be remanded for proceedings in conformity with views herein expressed. It is so ordered.

WOLFE, P. J., and WILLIAM E. BU-DER, Special Judge, concur.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Stanley BOMSON, Plaintiff-Respondent, v. ELECTRA MFG. CO., Defendant-Appellant.
    No. 24371.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.

      Kenneth M. Myers, James E. Grier, Brewer & Myers, Kansas City, for appellant.
    William M. Austin, James, McFarland & Trimble, North Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff sued defendant for damages growing out of a breach of an oral contract of employment. Plaintiff had a verdict and judgment for $12,500.00 and defendant appeals.

Plaintiff had been manufacturer’s representative, for thirty years, for Northeast Tool and Dye Company. He was hired to sell its large accounts, such as Sears Roebuck, Montgomery Ward, Gambles, Coast to Coast, all bicycle factories in the United States, and many others. Most of his accounts issued catalogs, some every two years, some yearly, and some twice a year. Plaintiff would call on his accounts every year, and from time to time, to see that Northeast products were listed in the catalog and, when new catalogs were issued, to see that such products were listed in each new edition. He would procure from the buyers an estimate of the kind and quantity of Northeast products they would require during the following calendar year and advise his employer thereof so that it could be prepared to deliver accordingly. He did not sell directly to customers but was paid a commission ranging from 5% to 7% on the dollar volume of all orders received by Northeast and shipped to any of his accounts. He received no salary and paid all of his travel and other expenses. He received commissions due him for each year that he worked, during the following calendar year. For instance, he would receive commissions for goods shipped in 1958 on orders solicited during 1957.

On November 1, 1958, defendant acquired ownership and control of Northeast. A few days later Mr. Sealey, who was sales manager for defendant, told plaintiff that defendant would like for him to continue in its employ on the same terms and conditions as those existing when he worked for Northeast. Plaintiff told Mr. Sealey that he only wanted to work for one more year and that, then, he would like to retire. Plaintiff stated that they agreed on those conditions. Plaintiff stated that Sealey agreed that he would be paid commissions on sales to be made in 1959. However, there was some conversation between Sealey and plaintiff later, when they started a trip to see customers, to the effect that a mutually satisfactory agreement would be reached. The evidence on this question was not clear but there was testimony from which the jury could have found that such was the understanding between Sealey and plaintiff. Plaintiff stated that, the week before Christmas, 1958, Sealey and he were in Chicago and met with Electra’s president in his room; that they talked about arrangements to be made for the following year; that plaintiff told them that he only wanted to work one more year, and then retire; that they agreed on a contract providing for a salary and expenses for his services in 1959; that plaintiff returned to Kansas City where, on December 23rd, he was called on the telephone by Mr. Sealey; that they discussed a contract which defend ant had prepared for plaintiff’s execution; that the contract provided for optional cancellation upon thirty days notice; that plaintiff refused to execute it if that clause were not stricken, but that defendant refused to do so; that he, therefore, refused to execute the contract and defendant “terminated” his employment; that he has never been paid anything on account of merchandise shipped by defendant to plaintiff’s accounts in 1959.

Mr. Sealey testified in behalf of defendant. His testimony was to the effect that defendant wished to retain the services of plaintiff so that he could contact his accounts and retain them for the new owner of Northeast. Plaintiff stated that defendant wanted him to remain in its employ so that he might introduce defendant’s salesmen to plaintiff’s numerous accounts and buyers; that he was to tell the buyers that defendant had taken over control of Northeast but that he, plaintiff, would continue to call on them and service their accounts.

Sometime after November 8th, 1958, plaintiff and Mr. Sealey made two trips to visit buyers representing plaintiff’s accounts. Plaintiff stated that each trip lasted about a week; that they called on buyers representing most of Northeast’s bicycle accounts, and were in New York, Illinois, Evanston and Chicago. Plaintiff stated that the majority of them had their commitments in for the year 1959; that all of his accounts for all merchandise produced and sold by Northeast totalled from five hundred to seven hundred; that his personal out-of-pocket expense on these trips was from five hundred to six hundred dollars.

We have stated the facts in evidence from a standpoint most favorable to plaintiff. Mr. Sealey was the only witness for defendant. His testimony varied to some extent, but not completely, from that of plaintiff. The jury could have believed plaintiff’s version, as it apparently did. Mr. Peterson, the real owner of Northeast, testified for plaintiff and substantiated plaintiff’s testimony.

The nature and terms of plaintiff’s employment with Northeast for many years, was not in dispute. He was Northeast’s representative in the solicitation of sales from several hundred large buyers over a very large territory. He received no salary and paid all of his own expenses. He received a commission of from five to seven percent on the dollar value of all merchandise shipped to these accounts. His commission was paid during the calendar year that the goods were shipped although plaintiff had solicited the business during the preceding calendar year.

Defendant does not say that it was misinformed as to the terms and conditions of plaintiff’s employment. The jury could have reasonably believed, from the testimony of plaintiff that defendant’s president, Mr. Groth, (who did not testify) and its vice-president and sales manager, Mr. Sea-ley, that defendant was fully informed as to these facts; and plaintiff’s testimony was to the effect that Sealey asked him to “continue” in its employment on those same terms and conditions. Sealey admitted in his testimony that defendant wanted to retain plaintiff’s services. Plaintiff agreed to Sealey’s proposal and they made two extensive trips to visit buyers in December, 1958, although most of the buyers’ commitments for 1959 were already “in”. Obviously, plaintiff could not profit from any business produced on these trips unless he was to receive commissions in 1959 on business produced in 1958.

However, defendant’s president and plaintiff agreed, in Chicago, on a contract for 1959 whereby plaintiff would receive a salary and expenses for that year. But when plaintiff was requested to sign a new contract it provided for optional cancellation on thirty days notice. Plaintiff refused to sign it and defendant terminated his employment.

True, the verbal contract, when made, was to operate in the future; but plaintiff, in good faith, entered into its performance at the request of defendant and spent two weeks in travel and expended substantial sums. The contract is valid and enforceable. Burg v. Bonn Terre Foundry Co., Mo.App., 354 S.W.2d 303. In the Burg case the contract provided that if employee should cancel the contract he should be paid commissions only on sales made up until date of cancellation, but if the company should cancel, commissions would continue to be paid until a satisfactory arrangement should be made between the parties. The court enforced the contract as to sales delivered after cancellation. In short, it enforced the contract as made. In the case at bar the contract was that plaintiff should be paid commissions on all orders received and shipped to plaintiff’s customers during the calendar year of 1959. Defendant breached the contract and is liable in damages.

The court gave the following instructions for plaintiff:

“INSTRUCTION NO. TWO”

“Your verdict must be for plaintiff if you believe

FIRST, plaintiff was employed prior to November 1, 1958, by Northeast Tool & Dye Works, Inc., under an agreement that plaintiff would be compensated for his services performed.

SECOND, the nature of plaintiff’s services were such that he was entitled to compensation for all orders received on his accounts during the year following the year in which his services were performed.

THIRD, on or about November 1, 1958, defendant employed plaintiff to perform services as a continuation of and on the same basis as plaintiff’s previous work for Northeast Tool & Dye Works, Inc., and agreed to pay plaintiff a commission on all orders received by defendant from plaintiff’s accounts during the year 1959.

FOURTH, sales were made during the year 1959 from defendant to plaintiff’s accounts and that plaintiff was not paid a commission therefor”.

“INSTRUCTION NO. THREE”

“If you find in favor of plaintiff, then you must award such sum as you believe will fairly and justly compensate him for damages you believe he sustained as a direct result of defendant’s failure to pay plaintiff commissions at the rate of five (5) percent on sales to plaintiff’s accounts during the year 1959.”

Defendant complains that plaintiff failed to prove any damages. It was incumbent on plaintiff to prove his damages. Weaver v. Jordan, Mo.App., 362 S.W.2d 66, 75. Plaintiff’s contract was to the effect that he should be paid commissions of from five to seven percent on all sales made and shipped to his accounts during the year 1959. His evidence was to the effect that he had solicited and serviced these accounts during the year 1958. He proved the dollar amount of sales made by defendant to plaintiff’s accounts during the year 1959, and that he had been paid nothing therefor. This was sufficient proof to support the verdict. City of Kennett v. Katz Construction Company, 273 Mo. 279, 202 S.W. 558, 562.

Defendant complains that instruction No. 2, is erroneous because plaintiff was not required thereby to render to defendant any services. It was not in dispute that plaintiff serviced his accounts for Northeast in 1958 and was to be paid commissions on all orders therefrom received in 1959. Plaintiff was employed to continue in the service of defendant on that same basis. He was not required thereby to render any services to defendant in connection with the orders to be received in 1959. Services to be rendered in 1959 would relate to business received by defendant in 1960. The instruction properly submitted the ultimate facts required to establish plaintiff’s right to recover. It did not mislead the jury. It is a sufficient compliance with court rule 70.01, V.A.M.R.

Defendant claims error because the trial court excluded from evidence the contract of sale executed by Northeast and defendant It claims that the contract contains no clause binding defendant to continue plaintiff in defendant’s employment on any terms. The document was and is irrelevant to any issue in this case. Plaintiff and his counsel stated, in open court, that they did not rely on that sales contract but relied exclusively on an oral contract entered into between plaintiff and defendant eight days after the sale was consummated. The point is without merit.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: CLEMENS, Commissioner.

text:
    Elmer V. A. BAYER, Plaintiff-Appellant, v. ASSOCIATED UNDERWRITERS, INC., and Roland A. Orf and Mary M. Orf, d/b/a Thirty-Nine Twenty Company, Defendants-Respondents.
    No. 32132.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.
    Rehearing Denied April 12, 1966.

      Gray & Sommers, R. Michael Fischer, St. Louis, for appellant.
    Michael D. O’Keefe and Daniel P. Rear-don, St. Louis, for respondent, Associated Underwriters, Inc.
    George E. Heifers, Clayton, for respondents Roland A. Orf and Mary M. Orf, d/b/a Thirty-Nine Twenty Co.
   CLEMENS, Commissioner.

The plaintiff sued for both a temporary and a permanent injunction. When the prayer for the temporary injunction came on for hearing, the trial court not only denied that relief but also dismissed the petition. The plaintiff appeals, and the question here is whether the trial court exercised its jurisdiction prematurely.

The plaintiff had sued defendants to restrain and enjoin them from interfering with an easement granted him by separate, successive leases from each defendant. He further asked for damages and specific performance of the leases. The essence of the petition: The corporate defendant had owned a small office building and had its own offices at the rear of the building. It leased plaintiff the suite of offices at the front of the building and five parking spaces in back of the building, and it granted plaintiff the right of passage through its own retained office space. This arrangement enabled the plaintiff and his employees to pass directly to and from his offices and the parking lot. The next year, the corporate defendant sold the entire property to its president, Roland A. Orf, and his wife, the individual defendants. The Orfs then executed two new leases. Their lease to the plaintiff granted him the same easement through the rear of the building, but their lease to the corporate defendant imposed no easement for plaintiff’s passage. Nonetheless, the plaintiff and his employees continued to use the easement for another year; but then the corporate defendant barred them from going through its offices. Consequently, plaintiff and his employees have had to walk a block and a half to and from the parking lot, to plaintiff’s damage.

When this petition was filed, the trial court issued an order to show cause why the defendants should not be temporarily enjoined from interfering with the plaintiff’s easement. At the hearing on this show cause order, the court entered a judgment which not only denied the prayer for temporary injunction but also dismissed the plaintiff’s petition. Plaintiff appeals from the judgment, contending that the only justiciable issue then before the trial court was his prayer for a temporary injunction, and that the court erred in dismissing the petition. We agree.

There are three permissible phases in an injunction proceeding. First, a restraining order granted against the defendant, with or without notice or hearing. Second, a temporary injunction granted after notice and summary hearing. Third, a permanent injunction granted after the pleadings are made up and the evidence is fully developed. At a plaintiff’s election he may forego the first or both the first and second phases, and proceed directly to the next phase. See Civil Rules 92.01 and 92.-02, V.A.M.R.; 1 Missouri Practice, Volz et al., §§ 1471 and 1474 ; 4 Missouri Pleading & Practice, Houts, §§ 1011 and 1024.

Here, the plaintiff did forego a restraining order and he sought, in turn, a temporary injunction and a permanent injunction. When the petition was filed, the court responded to the first request and ordered the defendants to appear and show cause why the temporary injunction should not be granted. The defendants had not yet been ordered to, and did not, file answers to the petition. But on the day specified by the court each defendant filed a return to-the order to show cause, appeared in person and with counsel, and submitted to the hearing. The plaintiff then offered the corporate defendant’s vice-president as a witness, but had hardly proceeded beyond his identification when the judge recessed the hearing and asked counsel into his chambers. There, the judge invited the corporate defendant to offer in evidence the new lease between it, as tenant, and the individual defendants, as owners. As said, that lease did not mention the plaintiff’s easement. Thereupon, the judge announced the adverse ruling and he and the parties signed a memorandum, pursuant to which the final judgment was entered denying the temporary injunction and also dismissing the petition. Plaintiff’s motion for a new trial charged error in dismissing his petition without a trial thereon, and when that motion was denied he appealed.

The plaintiff had initially requested the court to issue the order to show cause why a temporary injunction should not be issued. The court did so. The defendants were thereby summoned to appear for that specific purpose; they filed written returns to that order; and they appeared before the court as directed. Nothing but the issue of granting or denying a temporary injunction was then before the court for adjudication. As said by Judge Lamm in the case of State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25 [1], courts do not set themselves in motion but remain passive until the issues are framed by the parties; that what the court decides within those issues is res judicata, but anything beyond is coram non judice and void. So, at the hearing now under consideration the ambit of the court’s authority was limited to the area of controversy which the parties had adopted and the court itself had prescribed.

This principle has been applied in injunction suits to draw a jurisdictional line of demarcation between the hearing on the motion for a temporary injunction and the trial on the merits for a permanent injunction. This, because the primary object of the former is to maintain an existing status until the latter is adjudicated. Cirese v. Spitcaufsky, Mo.App., 265 S.W.2d 753 [1-2]. The cases of State ex rel. Eagleton v. Cameron, Mo., 384 S.W.2d 627 [4-7], and Stegmann v. Weeke, 279 Mo. 131, 214 S.W. 134 [1], are analogous to the one now before us. In each, the trial court held a hearing on a motion for temporary injunction, and not only denied the motion but went further and dismissed the petition. In each case the Supreme Court ruled that the trial court had exceeded its jurisdiction by prematurely ruling on the issue of permanent injunction. Here, the trial court went even further, for by its dismissal of the petition it also summarily snuffed out the plaintiff’s prayer for damages and specific performance.

The plaintiff does not and may not appeal from the denial of his plea for a temporary injunction. That order was not ap-pealable. Goldman v. Hoehn, 228 Mo.App. 202, 64 S.W.2d 733 [2], So, our remand will be limited. The judgment should be reversed and the cause remanded with instructions to the circuit court to grant defendants leave to plead to the petition, and then to proceed as to all relief sought except plaintiff’s plea for a temporary injunction.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause is remanded with instructions to the circuit court to grant defendants leave to plead to the petition, and then to proceed as to all relief sought except plaintiff’s plea for a temporary injunction.

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


author: HOWARD, Judge.

text:
    Virginia L. MODES, Appellant, v. William F. MODES, Jr., Respondent.
    No. 24274.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.
    Arthur H. Stoup, Kansas City, for appellant.
    William B. Waters, Liberty, for respondent, Hale, Coleberd, Kincaid & Waters, Liberty, of counsel.
   HOWARD, Judge.

This is a suit for divorce. The parties were married in 1959 and separated in June 1964. Each party had been married previously. The defendant husband had two children by a previous marriage; the plaintiff wife had no children prior to this marriage. One child was born of this marriage, who was slightly over three years old at the time of the trial.

Petition for divorce was filed by the wife and cross-petition for divorce was filed by the husband. After a trial in which voluminous testimony was given by both parties, the trial court granted a divorce to the husband on his cross-petition, granted the wife custody of the minor son of the parties, and awarded $250.00 per month child support. The parties will be referred to as they appeared below.

The sole allegation of error contained in plaintiff’s brief on appeal is that “The judgment of the trial court is against the evidence and the greater weight of the credible evidence in this case”. We are met at the outset with defendant’s motion to dismiss the appeal because this point is not sufficient under Civil Rule 83.05(e), V.A.M.R., to preserve anything for review and because plaintiff’s statement of facts does not comply with the requirements of Civil Rule 83.05(c) for failure to provide a concise statement of the facts relevant to the question presented for determination.

The statement of facts does leave something to be desired, but we do not believe that in this case it is so erroneous and deficient as to justify a dismissal of the appeal. As to the assignment of error in the point quoted above, it does advise the court that plaintiff contends that the evidence was insufficient to support the judgment. Therefore, while this point may not be technically sufficient, it does not result in any added burden to the court, because from the very nature of things, when the question of the sufficiency of the evidence is raised, the court must, itself, carefully study the transcript as a whole. For these reasons, we will not dismiss the appeal, but will consider the matter on its merits.

In this case tried to the court without a jury it is our duty to review the whole record and reach our own conclusions, both on the facts and the law. However, there was a direct conflict between the testimony of the husband and wife on each and every point in issue. Thus the decision of this case depends almost entirely on a determination of the credibility of the witnesses. Under such circumstances we give due deference to the conclusions of the trial judge who saw and heard these witnesses. Unless we can conclude from the record alone that the trial court erred in his conclusions as to credibility, we must affirm the judgment. This, of course, presupposes that the evidence, which was apparently believed by the trial court, is sufficient to sustain the judgment. Among the many cases setting forth the foregoing rule, see Grant v. Grant, Mo.App., 324 S.W.2d 382; Elgin v. Elgin, Mo.App., 301 S.W.2d 869; Thomas v. Thomas, Mo.App., 288 S.W.2d 689 and Noll v. Noll, Mo.App., 277 S.W.2d 853.

The testimony of the plaintiff wife, if believed, would reveal a course of physical abuse on the part of the husband amply sufficient to justify a divorce.

On the other hand, defendant husband denied such physical abuse and his testimony, if believed, would show that the wife was possessed of a violent temper, which she did not control, that she continuously cursed defendant and his two children by his previous marriage and subjected all three to physical abuse; that she made life so miserable for defendant’s children that they both left home; that she was unreasonably extravagant, and that on one occasion she left the home with the infant child of the parties and was absent for a week without advising defendant where she was. Such evidence would amply justify and support the decree entered by the court in this case.

Plaintiff’s testimony was corroborated in one instance by a maid and in another instance by a friend of plaintiff. Defendant’s testimony was corroborated by his two children and as to one incident by a teenage friend of defendant’s son. It is apparent that the trial court believed the testimony of the defendant husband and his witnesses and did not believe the testimony of the plaintiff wife and her witnesses. From a reading of the record, we can not say that the court erred in this judgment as to the credibility of the witnesses. The issue of credibility as revealed by this transcript of over 300 pages of testimony presents a conflict which, in our opinion, can only be resolved by an assessment of the testimony of each witness and particularly the testimony of the husband and the wife, based on their demeanor on the stand, and willingness to testify without hesitation or evasion. The trial judge is the only one who has the advantage of evaluating these factors and we can not say that he erred.

One incident may serve as an example. Plaintiff testified that on one evening her husband and his daughter were sitting at the kitchen table. She asked them to take their coffee into the living room. The daughter refused in a “smart-alecky” fashion and plaintiff slapped her. Defendant said to the daughter, “Let’s get her”, and the two of them proceeded to beat plaintiff, pushing her into the cabinets, and around the room. The wife and the daughter fell to the floor with the daughter holding the wife, and sometime in the scuffle the defendant deliberately stepped on her foot repeatedly and broke three of her toes.

Defendant’s testimony was that after the wife slapped the daughter, the daughter grabbed the wife’s arm to restrain her and the two slipped and fell to the floor, that when he separated them and they got to their feet, the wife struck the daughter with her fists; he grabbed her arms to restrain her and she attempted to kick the daughter, missed, and instead kicked a heavy wooden chair thus breaking her toes.

In these circumstances a detailed preservation of the evidence for publication in this opinion is not required. Suffice it to say that we have very carefully reviewed the evidence and as heretofore indicated have found that the evidence on behalf of the defendant is sufficient to support the judgment rendered by the trial court. The case turns entirely on the matter of credibility. In making his determination the trial judge had the opportunity to observe the witnesses and the transcript does not furnish us with any basis for disturbing his decision.

The judgment of the trial court is accordingly affirmed.

All concur.


author: STONE, Presiding Judge.

text:
    Eva LATHROP, Plaintiff-Respondent, v. TOBIN-HAMILTON SHOE MANUFACTURING COMPANY and Employers Mutual Casualty Company, Defendants-Appellants.
    No. 8502.
    Springfield Court of Appeals. Missouri.
    April 1, 1966.

      Daniel, Clampett, Ellis, Rittershouse & Dalton, Paul D. Rittershouse, Springfield, for defendants-appellants.
    Quentin Haden, Ava, Neale, Newman, Bradshaw, Freeman & Neale, Warren S. Stafford, Springfield, for plaintiff-respondent.
   STONE, Presiding Judge.

In this proceeding under the Missouri Workmen’s Compensation Law [V.A.M.S. Chapter 287], claimant Eva Lathrop filed a claim for benefits on account of personal injuries sustained as the result of an accident about 10 A.M. on Friday, September 14, 1962, in Mansfield, Missouri, when a driverless, runaway automobile crashed through a window of the shoe factory of her employer, Tobin-Hamilton Shoe Manufacturing Company, where she then was engaged in her regular work, i. e., operating “a closer” which “sews the back of shoes and the toes.” The employer and its insurer, Employers Mutual Casualty Company, admitted that the accident arose “in the course of” claimant’s employment hut asserted that it did not arise “out of” her employment and, therefore, was not com-pensable. V.A.M.S. § 287.120. The referee so found and denied compensation; and, on review, the Industrial Commission handed down a final award, all members concurring, denying compensation for the same reason. Upon appeal, the Circuit Court of Greene County (to which the case was transferred on change of venue) found “as a matter of law, that the accidental injury in question did arise out of [claimant’s] employment” and that she was entitled to benefits under the Compensation Law, set aside the final award of the Industrial Commission, and remanded the cause to the Commission for further proceedings. This appeal by employer and insurer has followed.

We digest the pertinent facts from the testimony of claimant, the only witness, and from the written report of the investigating trooper of the Missouri State Highway Patrol, received in evidence by agreement of counsel. The employer’s factory was situate on the north side, of an east-and-west alley, fifteen feet in width, which ran parallel to, and one short block north of, the business route of U. S. Highway 60 through the City of Mansfield, judicially known to have had a population of 949 persons according to the United States census of 1960. Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4); Missouri Public Service Co. v. Barton County Elec. Coop., Mo.App., 353 S.W.2d 818, 819(1). The south side of the factory was (as the trooper measured it) “six paces” or about eighteen feet north of the north edge of the east-and-west alley. A north-and-south alley, sixteen feet in width, ran north from the business route of Highway 60 to the east-and-west alley, dead-ending at, and making a T-intersection with, the latter alley at a point about even with the middle of the south side of the factory. With respect to the east-and-west alley, claimant testified that “there’s a street [an alley] there but there’s no traffic” ; but, with respect to the north-and-south alley, she said “yeah, it’s busy.” The east-and-west alley was one-way, limited to eastbound traffic, as was shown by an appropriate sign on the north side of the T-intersection. There was a gentle downgrade for northbound vehicles on the north- and-south alley.

At the time of accident, claimant was seated, facing toward the east, near the north end of a long north-and-south table and about ten feet north of a large window in the south wall of the factory. A substantial portion of this window would have been within the lines of the north-and-south alley, if extended to the north. The window was seventeen feet in width and five feet four and one-half inches in height. The glass, “painted white,” admitted light hut permitted no vision through it. The bottom of the window was five and one-half inches above ground level, while the floor of the factory was four feet two inches below ground level. There were no barricades between the east-and-west alley and the factory.

The automobile, which was shortly to work the havoc, stopped in the driveway of a filling station on the northeast corner of the intersection of Highway 60 and the north-and-south alley. When brought to a halt there, the automobile was headed north and was wholly on private property, to wit, in the filling station driveway, between the east line of the north-and-south alley and the gasoline pumps. The here unidentified female driver of the automobile alighted therefrom and (in the language of the patrol report) “had her sister move on the left side of car out of the sun. Apparently the motor of the car was left running and as the passenger moved to the left side of the car she accidentally put the car in gear and hit the accelerator. The car went forward approximately 140' and crashed through a window of the To-bin-Hamilton [factory].” As shown on the patrol report, the driverless, runaway automobile traveled almost due north on private property just east of the north-and-south alley until the automobile reached the east-and-west alley, crossed the latter alley angling slightly west of north, traversed the eighteen feet between the alley and the factory, mounted the 5½" section of the south factory wall under the window nearest to claimant, crashed through that window, and finally “came to rest 43' north of where it entered the factory.” Struck without warning, claimant knew nothing of the occurrence itself and her first recollection was of fellow-employees “pulling me out from under” the table. Since the nature, extent and duration of her injuries are not here in issue, it will suffice to capsule them in her terse statement that “I had a cracked pelvis and [right] hip and this leg” with “cuts on my head and [left] eye.”

In its final award denying compensation, the Industrial Commission included the oft-quoted statement that “[i]t is necessary to bear in mind the fundamental difference between those causative agencies which are part and parcel of the master’s business and under his control, and those which lie outside that business and beyond his control. In the former class of cases, it is quite reasonable to hold the master liable, no matter how unusual or unpreventable the accident may be. But, in the latter class of cases it seems unjust to hold the employer liable, unless the employment in some way exposes the employee to an unusual risk [of] injury from such agency which is not shared by the general public.” And the Commission suggested “that the facts in the instant case are not unanalo-gous to those in Scherr v. Siding & Roofing Sales Co., [Mo.App.], 305 S.W.2d 62.” In reversing the Commission, the “order and decree” of the circuit court did not indicate the theory on which the court had reached the conclusion that, as a matter of law, the injury did arise out of claimant’s employment. In excellent briefs filed in this court, resourceful counsel join issue as to whether the judgment of the circuit court may be supported on any of three bases, namely, (1) on the “street-risk doctrine,” (2) on the principles controlling in the so-called “assault cases,” or (3) on the theory that the accident resulted from a “special hazard” peculiar to claimant’s employment.

Preliminary to discussion of the above theories, it may be well to note that our Missouri courts have not accepted the so-called “positional-risk theory” [Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296, 299; Liebman v. Colonial Baking Co., Mo.App., 391 S.W.2d 948, 952-953], under which an accident becomes compensable on a mere showing that “it would not have happened but for the fact that the conditions or obligations of the employment put claimant in the position where he was injured” [Williams, supra, 332 S.W.2d at 299] or, even more pointedly put, that “the victim’s employment caused him to be at the place where it happened.” Liebman, supra, 391 S.W.2d at 952. And, recognizing the disfavored status of the positional-risk theory in this jurisdiction, instant claimant expressly disavows reliance on that theory.

We deal first with the “street-risk doctrine” because the other two points are interrelated in theory. Larson’s statement in boldface type under the heading of “the street-risk doctrine” is: “All courts now agree that street or highway injuries to employees such as traveling men, deliverymen, and solicitors, whose duties increase their exposure to the hazards of the street, arise out of the employment, although the nature of the risk (as distinguished from the degree) is not peculiar to the employment. A large number of courts have gone one step further by holding that injury from such risks is compensable regardless of whether such exposure is continuous or only occasional, so long as the exposure is in fact occasioned by the employment. At the same time, the concept of street risks has been broadened far beyond the original idea of traffic perils, and has been applied to almost any mishap whose locale is the street, including simple falls, stray bullets, falling trees, and foul balls.” 1 Larson, Workmen’s Compensation Law, § 9.00, p. 75. (Except as is otherwise specifically noted, all emphasis herein is ours.)

In Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 747 (ruled upon the principles controlling in assault cases), we quoted parenthetically, but with approval, the basic definition of the street-risk doctrine in the first sentence of the above paragraph from Larson, supra. And in Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, 490 (an assault case), the court digested the doctrine of street-risk or street-hazard cases as being “that injuries received on the public streets or highways, due to traffic accidents, falls, and other accidents, which are more likely to occur on the highway than off of it, arise out of the employment.” Thus, the street-risk doctrine deals with “street or highway injuries” caused by mishaps “whose locale is the street.” Larson, supra.

In an effort to bring instant claimant’s injury within the scope of this doctrine, her counsel seize upon the statement in Liebman, supra, 391 S.W.2d at 954, that the doctrine should be “sufficiently flexible” to include “an injury sustained on adjacent premises as the end result of an accident that began in the street from a risk inherent in its use . . . ” — an expression by way of dictum following the author’s definition of “[a] street hazard ... as one inherent in the use of the streets [emphasis not ours]; meaning, in turn, one naturally, normally or logically encountered there by the public generally in the ordinary course of human affairs . . . .” 391 S.W.2d at 953. However, the situation at hand does not call for our approval or disapproval of the quoted dictum from Lieb-man, supra, since the case at bar would not be within the scope of that dictum anyway, in that obviously claimant was not injured “as the end result of an accident that began in the street from a risk inherent in its use.”

Claimant also cites five other Missouri cases to her point that she is entitled to compensation under the street-risk doctrine. The first of these is Murphy v. Wells-Lamont-Smith Corp., Mo.App., 155 S.W.2d 284, in which claimant Murphy, on her way to work, was walking on the sidewalk in front of her employer’s factory and shipping yard and had reached a point where the employer had changed the sidewalk and was using it as a driveway into the shipping yard, when she heard a shout, saw a truck backing from the street into the shipping yard, stepped two feet off the sidewalk into the yard, and there was struck by the truck. Counsel for instant claimant mistakenly cite Murphy, supra, as holding “that an employee was entitled to recover under the street-hazard doctrine when she was hit by a truck on private property,” when, in fact, that case was decided on, and simply reflected the application of, what is known as the going and coming rule [155 S.W.2d at 289(3)], i. e., that an accident is said to arise “in the course of” employment when it occurs as the employee is “going to and from work ... on the employer’s premises” (emphasis not ours) [1 Larson, Workmen’s Compensation Law, § 15.11, p. 195], that rule itself constituting an exception to the broad “ ‘general rule that harm sustained by an employee while going to or from his work is not compensa-ble.’ ” Tucker v. Daniel Hamm Drayage Co., Mo.App., 171 S.W.2d 781, 784(2). That Murphy, supra, was decided on the going and coming rule was confirmed in an opinion by the same author in Tucker, supra, 171 S.W.2d at 784-785. See also the context in which the same court discussed Murphy in Donzelot v. Park Drug Co., Mo.App., 239 S.W.2d 526, 532(3), and cited it in Garrison v. U. S. Cartridge Co., Mo.App., 197 S.W.2d 675, 676(1).

Three of the cases cited by claimant [Beem v. H. D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441, 100 A.L.R. 1044; Morrow v. Orscheln Bros. Truck Lines, 235 Mo.App. 1166, 151 S.W.2d 138; Howes v. Stark Bros. Nurseries & Orchards Co., 223 Mo.App. 793, 22 S.W.2d 839] involved “street or highway injuries” [Larson, supra] sustained by employees while on public ways in the course of employment. In Buckner v. Quick Seal, Inc., 233 Mo.App. 273, 118 S.W.2d 100, an employee required to travel by train (a public conveyance) was, while riding thereon, injured by an unprovoked assault. When the opinion in each of the cases cited by claimant is read and considered, as it must be, in the light of the facts of that particular case, none of those cases fairly can be said to support her insistence that she is entitled to compensation under the street-risk doctrine. The situation under review is not within that doctrine as it has been either defined or applied in any Missouri decision. The New York cases, to which claimant calls our attention [Domres v. Syracuse Safe Co., 240 N.Y. 611, 148 N.E. 727; Santos v. Guemes, 270 App.Div. 1057, 63 N.Y.S.2d 61], are not persuasive here, for the decisions in that state in effect embrace the positional-risk theory, i. e., compensation on a mere showing that the victim’s employment put him in the position where he was injured [see 1 Larson, Workmen’s Compensation Law, §§ 10.00 to 10.21, inch, and New York cases there cited; Liebman, supra, 391 S.W.2d at 955], whereas Missouri rejects that doctrine and instant claimant specifically disclaims reliance thereupon. Certainly the judgment of the circuit court cannot be affirmed on the basis that claimant was entitled, as a matter of law, to recover on the street-risk doctrine.

Turning to the “assault cases,” we discussed at some length in Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743 (application to transfer denied Mo.Sup. No. 49116), the controlling principles in that broad category of actions. Instant claimant’s counsel incorporate in their brief this excerpt from Gregory, supra, 348 S.W.2d at 745: “Perhaps the most frequently repeated definitive statement concerning ‘out of’ the employment is that an injury so arises when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. See Heaton v. Ferrell, Mo.App., 325 S.W.2d 800, 803-804, and the numerous cases collected in footnote 1. Several of the cases include the alternative statement that, ‘(i)n other words, an injury arises out of the employment if it is a natural and reasonable incident thereof, even though not foreseen or anticipated’ [citing six Missouri cases] . . . However, counsel pass up the kernel of the matter under discussion by omitting the remainder of the paragraph: “ . . . but all of these [cases] and many others add the qualifying admonition that, to arise out of the employment, an injury must have been a rational consequence of some hazard connected therewith. Heaton v. Ferrell, supra, 325 S.W.2d loc. cit. 804(4), and cases cited in footnote 3; King v. City of Clinton, Mo.App., 343 S.W.2d 185, 188(5); Jackson v. Euclid-Pine Inv. Co., supra [223 Mo.App. 805], 22 S.W.2d [849], loc. cit. 851.” It is not sufficient that the employment simply may have furnished a convenient opportunity or occasion for the employee’s injury from some unconnected source. And where, as here, the causative agency was not “part and parcel of the master’s business and under his control” but was “outside that business and beyond his control,” the reported cases in this jurisdiction frequently have reminded, as did the final award of the Industrial Commission in this case, that “it seems unjust to hold the employer liable, unless the employment in some way exposes the employee to an unusual risk [of] injury from such agency which is not shared by the general public.’’ See again the cases cited in footnote 1, supra.

The essence of instant claimant’s contention is that her employment did expose her to an unusual risk of injury not shared by the general public and that her injury was a rational consequence of a hazard connected with such employment, in that (so she argues) she was required to work “in close proximity to” (more accurately stated, ten feet from) a large “tinted” and “unguarded” glass window, with the bottom of the window being “approximately level with” (more carefully described, five and one-half inches above) ground level and the window itself being “immediately adjacent to” (in fact, about eighteen feet north of) the T-intersection of the alleys.

It is true ..that, as claimant emphasizes, “the general public” did not work inside the employer’s shoe factory and, on that account, was not subject to the specific possibility of being struck by a driverless, runaway automobile after it had crashed through a window in the factory wall. But claimant was injured only when and because the automobile struck her, not by reason of any antecedent happenstance along its .unguided and unpredictable course, such as that of the automobile having crashed through a window. And it cannot be gainsaid that members of the general public outside the factory, including those on foot and in vehicles who might have been using the nearby alleys, also were exposed to the hazard of being struck and thereby injured by this or some other driverless, runaway automobile. If it be conceded (for the purposes of this opinion) that some reasonable men might conclude that claimant’s employment, which stationed her inside the factory at a point approximately twenty-eight feet from the nearest public way, exposed her to an unusual risk of injury from the agency here involved, i. e., from a driverless, runaway automobile, which was not shared by the general public, and that her injury was a rational consequence of a hazard connected with her employment, we are convinced that other equally-reasonable men honestly could and undoubtedly would reach a contrary conclusion.

If from the evidence as a whole different inferences or conclusions might have been drawn as to these basic issues of fact, it was for the Industrial Commission, as the trier of the facts, to draw the inferences and determine the issues and such determination did not become a matter of law; and this was so even though there was no evidence other than claimant’s testimony and the investigating trooper’s written report. Ashwell v. United States Seed Co., Mo.App., 167 S.W.2d 950, 952-953(2, 3). See Karch v. Empire District Elec. Co., 358 Mo. 1062, 1071, 218 S.W.2d 765, 771; Arnold v. Wigdor Furniture Co., Mo., 281 S.W.2d 789, 797(9). On the record before us, we have no doubt but that it was for the Commission to determine whether or not claimant’s employment exposed her to an unusual risk of injury from a driverless, runaway automobile not shared by the general public and whether or not her injury was a rational consequence of a hazard connected with such employment.

The finding of the Industrial Commission that the accident sustained by claimant did not arise out of her employment was the finding of an ultimate fact and implied a finding of every supporting issue of fact in accordance with that general finding. Thus, the Commission (so we hold) reasonably could have found, and presumably did find, “as elements of” the ultimate finding that claimant’s accident did not arise out of her employment [Kelley, supra, 392 S.W.2d at 258], that such employment did not expose her to an unusual risk of injury not shared by the general public and that her injury was not a rational consequence of a hazard connected with such employment. It is immaterial what the findings and conclusion of the circuit court in the first instance, or of this court on appeal, might have been if sitting as the trier of the facts. For, on judicial review the inquiry is whether, upon the entire record, the Commission reasonably could have made the findings and award under consideration, not whether a contrary conclusion would have been permissible.

What we have written in the foregoing discussion of the controlling principles in assault cases is equally relevant to, and similarly dispositive of, claimant’s alternative theory that the accident resulted from a “special hazard” peculiar to her employment.

Concluding (as we have) that, upon the entire record, the Commission reasonably could have found that the accident sustained by claimant did not arise “out of” her employment, it necessarily follows that the judgment of the circuit court cannot stand. Accordingly, it is the judgment of this court that the judgment of the circuit court be set aside and for naught held and that the final award of the Industrial Commission denying benefits under the Compensation Law be reinstated and affirmed.

RUARK and HOGAN, JJ., concur.

      . Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, 489; Finley v. St. Louis Smelting & Refining Co., 361 Mo. 142, 147-148, 233 S.W.2d 725, 728; Culberson v. Daniel Hamm Drayage Co., Mo., 286 S.W.2d 813, 816; Carriker v. Lindsey, Mo.App., 313 S.W.2d 43, 46; Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 746-747. See Scberr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62, 64-65.

      . For a critique of this case, see Liebman v. Colonial Baking Co., Mo.App., 391 S.W.2d 948, 955.

      . Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 498(10); Tucker v. Daniel Hamm Drayage Co., Mo.App., 171 S.W.2d 781, 785. See State on Inf. of Dalton v. Miles Laboratories, 365 Mo. 350, 364, 282 S.W.2d 564, 573(12), and cases there cited.

      .See Kelley v. Sohio Chemical Co., Mo. (banc), 392 S.W.2d 255, 257, 258; Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, 880; Liebman, supra note 2, 391 S.W.2d at 950(2); Kammeyer v. Board of Education, Mo.App., 393 S.W.2d 122, 127; Scherr, supra note 1, 305 S.W.2d at 65 (6); Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, 212.

      .Kelley, supra note 4, 392 S.W.2d at 257 (4); Toole, supra note 4, 291 S.W.2d at 882; Poster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421, 428(12); Gregory, supra note 1, 348 S.W.2d at 746; 58 Am. Jur., Workmen’s Compensation, § 265, loc. cit. 266.

      . Compare Kelley, supra note 4, 392 S.W.2d at 258; Liebman, supra note 2, 391 S.W.2d at 950-952; Scherr, supra note 1, 305 S.W.2d at 65-66; May v. Ozark Central Telephone Co., Mo.App., 272 S.W.2d 845, 849; Long, supra note 4, 257 S.W.2d at 212-213; Ries, supra note 1, 186 S.W.2d at 489-490.

      . Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 1071, 218 S.W.2d 765, 771; Sanderson v. Producers Commission Ass’n., 360 Mo. 571, 579, 229 S.W.2d 563, 567-568(7); Arnold v. Wigdor Furniture Co., Mo., 281 S.W.2d 789, 797(9); Damore v. Encyclopedia Americana, Mo., 290 S.W.2d 105, 108(6); Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 815(4); Cotton v. Voss Truck Lines, Inc., Mo.App., 392 S.W.2d 428, 434(7).

      . See particularly Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296, 299-300; Howard v. Ford Motor Co., Mo.App., 363 S.W.2d 61, 67. Consult again the cases cited in note 6, supra.

      . Leilich v. Chevrolet Motor Co., 328 Mo. 112, 120, 40 S.W.2d 601, 604(3); Damore, supra note 7, 290 S.W.2d at 108 (5); Schulte v. Grand Union Tea & Coffee Co., Mo.App., 43 S.W.2d 832, 833(2); Probst v. St. Louis Basket & Box Co., Mo.App., 52 S.W.2d 501(1), certiorari quashed, State ex rel. Probst v. Haid, 333 Mo. 390, 62 S.W.2d 869.

      . State ex rel. Probst v. Haid, 333 Mo. 390, 62 S.W.2d 869, 872(2); Staten v. Long-Turner Const. Co., Mo.App., 185 S.W.2d 375, 381(16). See State ex rel. Buttiger v. Haid, 330 Mo. 1030, 1034, 51 S.W.2d 1008, 1009(4); Hanley v. Carlo Motor Service Co., Mo.App., 130 S.W.2d 187, 192(11).

      . Cotton, supra note 7, 392 S.W.2d at 434; Davis v. Brezner, Mo.App., 380 S.W.2d 523, 529; Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306, 310(6); Blair v. Armour & Co., Mo.App., 306 S.W.2d 84, 89.

      . Williams, supra note 8, 332 S.W.2d at 299-300; Johnson v. Simpson Oil Co., Mo.App., 394 S.W.2d 91, 97(12); Vandaveer v. Beinhart & Donovan Const. Co., Mo.App., 370 S.W.2d 156, 163; Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344, 349(5), and cases there collected in note 3.