author: HOLMAN, Commissioner. DALTON, Judge

text:
    STATE of Missouri, Respondent, v. William Andrew SOLVEN, Appellant.
    No. 49059.
    Supreme Court of Missouri, En Banc.
    Oct. 14, 1963.

      Morris A. Shenker, Lawrence J. Lee, St. Louis, for defendant-appellant.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Commissioner.

Defendant was charged with the offense of robbery in the first degree by means of a dangerous and deadly weapon. See Sections 560.120 and 560.135 (unless otherwise indicated all statutory references are to RSMo 1959, V.A.M.S.). The indictment also charged three prior felony convictions. In accordance with the provisions of Section 556.280(2) the trial court held a hearing outside the presence of the jury and found that the defendant had been priority convicted of three felonies and in each instance had been sentenced and imprisoned therefor. The jury found defendant guilty as charged. Thereafter, in accordance with the provisions of Section 556.280(1), the trial court fixed defendant’s punishment at imprisonment in the penitentiary for a term of twelve years. Defendant has appealed from the ensuing judgment.

The principal witness for the State was Miss Margaret Jung, an employee of the Gravois Savings and Loan Association whose office is located at 1712 S. 12th Street, St. Louis, Missouri. She testified that at about 4:45 p. m. on June 23, 1960, she was standing at the counter talking with a customer when she saw a man (later identified as defendant) looking in the window; that she walked to the door and looked to the south and saw defendant as he sat down on the steps at the entrance of the building next door; that he turned and looked at her and she saw “his full face” and also noticed that he had on a striped shirt and dark trousers; that another man was also seated on the steps; that she went back into the office and about five minutes later defendant and another man entered the office; that they had handkerchiefs over the portion of their faces below the eyes; that defendant had a gun in his left hand and said, “This-is a stick-up,” and the other man went behind the counter and took $389 from the money drawer; that the men then left the office and she immediately went out to see if they had a car, but they had disappeared.

Miss Jung further testified that from time to time thereafter she viewed about 50 men in a number of police “line-ups” and on September 19, 1960, identified defendant (from a line-up of five or six men) as the man who had held the gun in the robbery; that she asked defendant at that time if he was left-handed and he replied that he was “both-handed.” This witness was positive in her identification of the defendant both at the police station and at the trial.

Another employee of Gravois, Mrs. Bon-da Hooks, was seated at her desk behind the counter at the time of the robbery. She stated that both men had handkerchiefs on their faces during all the time she saw them; that defendant “looks like the one that had the gun. Q. But are you certain that is the man? A. No, I couldn’t be positive of him.”

Defendant offered no evidence. Upon this appeal we will first consider his contention that the trial court erred in overruling his motion for judgment of acquittal because the evidence was insufficient to> make a submissible case. This contention cannot be sustained. Defendant was positively identified by Miss Jung who was corroborated, at least to some extent, by the testimony of Mrs. Hooks who stated that defendant “looked like” the robber. We rule that there was sufficient substantial evidence to support a conviction. State v. Smith, Mo.Sup., 298 S.W.2d 354.

The next point briefed is that the court committed prejudicial error in not permitting defendant’s counsel to show, by the cross-examination of Margaret Jung, that she had refused to discuss the case with him and that she had followed the directions of the circuit attorney in refusing to do so. The entire record relating to this contention is quoted as follows:

“By Mr. Lee: Q. Have you ever seen me before Miss Jung? A. Yes, I have. Q. When? A. Last Friday. Q. I came to your place of business down there at the Savings and Loan Association— A. Yes, sir. Q. And I asked you what you knew about this particular incident, isn’t that right? A. Yes, sir. Q. And you refused to discuss the matter with me— Mr. Koster: Well, your Honor, I object to— A. I didn’t refuse, Mr. Koster [continuing]: — • line of questioning, your Honor, it is incompetent, irrelevant, your Honor, as counsel knows, he might take depositions in the presence of the State’s attorney, nót go out and talk to the witness alone. Mr. Lee: Your Honor, I have the duty and the right— The Court: Well, now, wait, wait. Never mind. None of that is material to the present situation. The objection is sustained, because a refusal to talk is not an admission of any sort, and it is not an impeachment of any sort.

“Proceedings were had out of the hearing of the jury as follows:

“Mr. Lee: Your Honor, I want to get in the record that I was present at the Gravois Savings and Loan Association last Friday and spoke to this woman and asked her what she knew about this particular case. She said she would not talk to me, she said that she thought she had better talk to the circuit attorney first, so I said to call the circuit attorney, and he ordered her not to talk to me, and she told me to leave the premises, and I think that would be admissible in evidence in this case, the thing that prevented me from investigating this case.
“The Court: I don’t think that that is a prevention of investigation. The witness was entitled to refuse to talk if she wished. I think that you could have taken her deposition. I think she is entitled to refuse to talk to people that call on her to do so. I <do not think it is a prevention of investigation, and I don’t think it reflects on the credibility of the witness.
“Mr. Lee: The reason that I came up here, I wanted to ask if at the orders of the circuit attorney she refused to discuss this matter with me. I thought I had better tell the court that first before I asked it.
“The Court: Well, you did, and I sustain objection to that question and we will consider what you said as an offer of proof.”

Defendant contends that the proffered evidence was admissible because it tended to show that the witness was partial toward the State and was biased and prejudiced against the defendant.

In our consideration of this contention we should hear in mind that proper cross-examination is a well-recognized method of ascertaining the truth in the trial of cases. “Any litigant should be freely accorded the right to cross-examine an adverse witness and the court should not unduly restrain or interfere with the exercise of that right.” Houfburg v. Kansas City Stock Yards Co. of Maine, Mo.Sup., 283 S.W.2d 539, 548, 549. That rule is particularly applicable in a criminal case. State v. Albritton, 328 Mo. 349, 40 S.W.2d 676. And we are convinced that any ruling that encroaches upon the right of cross-examination should be viewed with apprehension and carefully examined by the appellate courts. The general rule which we deem to be here applicable has been recently stated by this court as follows : “The fact that a witness is interested in the result of an action, civil or criminal, in the trial of which he testifies, or is biased or prejudiced in favor of or against any of the parties thereto is proper to be shown and considered as bearing on the credit which should be accorded his testimony. The interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters, and where the interest or bias is denied by the witness, it may be shown by the testimony of others, and even where such interest or bias is admitted by the witness, the extent of it may be shown, although much is left to the discretion of the trial court as to how far the inquiry may-go into the details of the difficulty, disagreement, or other transaction which caused the hostility, prejudice, or ill feeling.” State v. Pigques, Mo.Sup., 310 S.W.2d 942, 947.

No case has been cited in either brief which involves the precise situation here presented. Our research, however, has disclosed a few cases in which the same or a closely related issue is presented under partially similar circumstances. There is perhaps some support for defendant’s contention in the case of Phillips v. East St. Louis 6 S. Ry. Co., Mo.Sup., 226 S.W. 863, although the ruling therein is not decisive because other conduct of the witness was considered in addition to the fact that he had refused to give information to plaintiff’s attorneys. However, in the cases of Birmingham Ry., Light & Power Co. v. Norton, 7 Ala.App. 571, 61 So. 459, and Pendley v. State, 23 Ala.App. 539, 128 So. 589, the court had before it, under somewhat similar facts, the issue we are considering and in each instance it was held proper to show upon cross-examination that a witness for one of the parties had refused to tell the attorney for the other party what he knew about the case. In the Birmingham case the court, in ruling the question, stated that whether the refusal of the witness “was due to a sympathy or a leaning of the mind of the witness in favor of the defendant, or antipathy to the plaintiff, or neither, was for the jury; but it was at least a circumstance, if unexplained, tending to support an inference of bias; and the objection to the question, having for its aim the bringing out of such evidence, was properly overruled.” 61 So. 462.

The case of Douglas v. Washington Terminal Co., 54 App.D.C. 326, 298 F. 199, tends to support a contrary view. Therein, plaintiff sought to show that before trial a witness had given a statement to the agent for defendant and had refused to give a statement to plaintiff’s agent. The court, without any discussion of the question, held that it was within the discretion of the trial court to exclude the proffered evidence. As will hereinafter more fully appear, we are of the opinion that this evidence is either admissible as a matter of right, or, it is not admissible and hence is not a question which rests in the discretion of the trial, court.

The case of State v. Cropper, 327 Mo. 193, 36 S.W.2d 923, involved a situation partially similar to the one before us. In ruling that the proffered evidence was properly excluded, the court stated: “Proof that Shipley’s wife, Edgar Herd, and Edward Herd had been cautioned not to talk to the defendant’s counsel in the absence of counsel for the state would have been immaterial, and was properly excluded on the state’s general obj ection thereto. While these witnesses were under no legal obligation to talk to the defendant’s counsel, they were free to do so at any time, regardless of the suggestions or directions of the counsel for the state.” It will be noted that there is no suggestion in the quoted portion of the opinion that the witnesses followed the admonition that is said to have been given them. In order to be certain as to the issues presented, we have examined the transcript in that case and find that there was no offer to prove that the witnesses actually followed the direction of the state’s attorney. This clearly distinguishes the Cropper case from the case at bar. Of course it would not reflect upon the credibility of a witness to prove that he had been told by an attorney not to discuss the case with opposing counsel. It is only when there is an offer to prove that the witness followed that direction and actually so refused that a reasonable basis is afforded for the contention that the evidence tends to prove that the witness is partial and biased. The ruling in the Cropper case therefore has no application to the issue presented in the instant case.

We have concluded that the trial court committed prejudicial error in sustaining the objection to the proffered evidence. It is elementary that a witness is not required to talk with any attorney. We also consider it to be entirely irrelevant that defendant could have obtained the knowledge of the witness concerning this occurrence by taking her deposition. The question before us is defendant’s right to show, by cross-examination, that the witness followed the orders of the circuit attorney in refusing to discuss the case with his attorney.

Evidence that Miss Jung refused to talk with defendant’s counsel until she had consulted the circuit attorney, and then followed his directions in refusing to do so, and subsequently ordered the attorney to leave the premises, would certainly have been relevant in tending to show the willingness of the witness to cooperate with the circuit attorney and her partiality for the State and bias or hostility toward defendant. Under the rules heretofore stated, these are matters which may be properly shown upon cross-examination because they have a bearing upon the credit which should be given the testimony. In determining the weight to be given the testimony of this witness, the jury could properly consider her explanation as to why, if she intended to tell the truth at the trial, she refused to disclose the facts within her knowledge to the defendant’s attorney until and unless she could obtain the permission of the circuit attorney to do so.

The State in its brief asserts that defendant should not be permitted to here contend that the proffered evidence was admissible as tending to show the partiality and bias of the witness because he did not advise the trial court that it was offered for that purpose. Under the circumstances of this case we do not think that contention is sound. This, for the reason that before defendant’s attorney had completed his statement concerning the admissibility of the testimony the court interrupted, sustained the objection, and expressed the view that it was "not an impeachment of any sort,” and later stated, “I don’t think it reflects on the credibility of the witness.” In this situation it would not have aided the trial court for defendant’s attorney to have suggested that the testimony was admissible on the issue of credibility. Moreover, we note that defendant in his motion for new trial expressly stated that the ruling deprived him of “the right of showing bias and prejudice on the part of the witness,” and hence the trial court had another opportunity to consider the correctness of its ruling.

The State also contends that the ruling in question was a matter within the discretion of the trial court and that there was no abuse of that discretion. As heretofore indicated, we do not agree. It is our view that the court did not have any discretion in preventing all cross-examination in regard to the basic facts relating to this subject. The court, of course, could exercise its discretion as to the scope and extent of the cross-examination in question, but could not prevent it entirely. State v. Thompson, Mo.Sup., 280 S.W.2d 838.

In considering the question as to whether the error was prejudicial we have noted the fact that the witness partially answered one question while the objection was being stated, saying, “A. I didn’t refuse,”. We have decided that this did not remove the prejudicial effect but probably made the ruling more prejudicial. It is obvious from the offer of proof that the witness did not tell the defendant’s attorney what she knew about the case, and yet the jury heard her answer denying that she refused to discuss the matter with the attorney, and defendant was precluded, by the ruling complained of, from obtaining her explanation as to what actually occurred at that time.

Since the case must be reversed and remanded for the reason indicated, we need not discuss the remaining point briefed by defendant as it relates to an alleged trial error that will not likely recur upon another trial.

Reversed and remanded.

COIL and HOUSER, CC., concur.

Opinion of HOLMAN, C., in Division One adopted as opinion of Court en Banc.

All concur except DALTON, J., who dissents in separate opinion filed.

DALTON, Judge

(dissenting).

I find it necessary to dissent from the conclusion reached in the above case sustaining the following assignment of error: “The Court erred in not permitting defense counsel to ask Margaret Jung, the State’s witness, if she had refused to discuss the case with defense counsel on the Friday before the trial and that she was told by the Circuit Attorney of the City of St. Louis not to discuss the case with defense counsel for the reason that defense counsel was deprived of the right of showing bias and prejudice on the part of the witness.” (Italics ours.)

I dissent for the reason that the offer of proof made by the defendant-appellant in the trial of the case was not for the purpose of showing bias and prejudice on the part of the witness. There is nothing in the record tending to show that defendant’s counsel had any such purpose, as indicated in the assignment, in view or in mind at the time he sought to cross-examine the witness Jung. The portion of the transcript upon which this assignment is based fully appears in the opinion submitted and it expressly appears that the offer of proof was not for the purpose of showing bias and prejudice on the part of the witness. It is true that the court made an extended and erroneous statement of law to which no objection was made and no assignment of error is now levied against that statement. The matter of the offered evidence not tending to show bias and prejudice on the part of the witness was a matter discussed by the court, but not raised by defendant’s counsel. It appears for the first time in defendant’s motion for a new trial in subdivision 2, long after the court’s unfortunate speech. Both the offer of proof and the subsequent concluding statement of defendant’s counsel expressly show the intended purpose for which the excluded evidence was sought to be offered. The offer of proof concludes with the words “I think that would be admissible in evidence in this case, the thing that prevented me from investigating this case.” (Italics ours.) Further, the subsequent statement indicates the same purpose: “I wanted to ask if at the orders of the Circuit Attorney she refused to discuss this matter with me.” (Italics ours.) The court recognized that the offer was made to prove “prevention of investigation.” The court said: “I don’t think that that is a prevention of investigation.”

I am further of the opinion that the offer of proof, as made by defendant’s counsel, if proven, would not have been sufficient to sustain an inference of bias and prejudice on the part of the witness. In any event it was not offered for that purpose and defendant may not now complain that he was deprived of the right of showing bias and prejudice on the part of the witness by such cross-examination. The mere fact that the trial judge may have made an improper speech to which no objection was interposed is not prejudicial or reversible error in any case where the court’s ruling on the issue actually presented for decision was legally correct. Further, if the court properly ruled the issue presented to it, it is immaterial that he may have assigned a wrong reason or even a reason that was legally incorrect. In other words, it clearly appears to me that this case is being reversed on a ground that did not even occur to defendant’s counsel until after the unfortunate speech by the trial judge, and even then no offer of proof was made for the specific purpose about which the court was talking or about which appellant now complains, until the motion for a new trial was prepared and filed. At the time the evidence was excluded defendant’s counsel had not indicated any purpose of showing bias and prejudice on the part of the witness, either when the questions were asked, the offer of proof made or the court’s ruling entered.

I would, therefore, affirm the judgment.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Gertrude KEITH, Appellant, v. The JOS. G. SCHMERSAHL CO., Respondent.
    No. 49705.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Motion for Rehearing or to Transfer to Court En Bane Denied Oct. 14, 1963.
    Louis S. Czech, Clayton, for appellant.
    Evans & Dixon, William Wallace Evans, St. Louis, for respondent.
   BARRETT, Commissioner.

In this action to recover $45,000 damages for personal injuries sustained in a fall on steps in a “display home” at 5 Sun-Ridge Lane in Florissant a jury returned a verdict for the defendant and the plaintiff, Gertrude Keith, has appealed. The Keiths had once entered into a contract to purchase the completely furnished residence but the real estate agents were unable to sell their property and so the contract did not “materialize.” Mrs. Keith was nevertheless interested in the property and on July 20, 1960, made an appointment with the defendant’s real estate agent for the purpose of showing the property to her friends, the Dickinsons. The agent had shown the Dickinsons and the Keiths through the upper level of the house in which there was a carpeted stairway of five steps. And in connection with these steps there was a wrought iron handrail. The agent then suggested that they look at the family room at the basement level. There were five steps of natural wood from the kitchen to the family room, and there was no handrail for these steps. The agent “stepped aside” and Mrs. Keith “glanced at the steps and took my first step with my left foot. As I brought my right foot I felt a slipping beneath my foot. I fell and there was no handrail to grab. * * * I reached and my arm scraped the wall on this side, the left wall” and she fell all the way down in a bumping fall. As she started down the steps Mrs. Keith had not noticed it but these wooden steps were covered with a “clear plastic with a slight rib.” Mrs. Keith’s husband described the plastic as “slippery plastic,” and, he said, “It just looked slick to me. It had little ripples in it and looseness in it.” In its answers to interrogatories the defendant said that its carpenter had placed the 36 inch wide plastic, “long enough to cover the steps” on the stairway, “taped at the top with masking tape, and taped and tacked with thumb tacks the rest of the way down.” Mrs. Dickinson said that it was “clear plastic” and, she said, “It was loose.” In her petition and so far as material here Mrs. Keith pleaded “That defendant maintained a slick plastic cover over the steps inside the said home and that the said slick plastic cover was not nailed down and was loose. That defendant maintained the said steps inside the said house without a bannister or hand railing and also maintained a slick plastic cover over the steps, and this situation combined created a dangerous and not reasonably safe condition in the said house in question.” (Emphasis supplied.) The appellant now contends that the trial court erroneously overruled her motion for a new trial and that this court should grant a new trial because the court prejudicially erred in admitting in evidence exhibit 2, a 36 inch wide, 7 foot long strip of plastic and in permitting a witness to testify to certain tests he had made with the exhibit. In addition, she urges that the court prejudi-cially erred in giving to the jury instructions 2, 3, 7 and 8.

After Mrs. Keith’s claim was made known, defendant’s counsel asked Mr. Schmersahl to remove and preserve the plastic cover on the stairway. He removed a plastic cover from the natural wood stairway to the family room at 5 Sun-Ridge Lane but he could not say that it “was the very plastic on there at the time the lady fell.” He said that all the plastic used in the subdivision was “a serrated plastic covering that you use for covering and preserving finished floors * * * in display houses,” and he said that all of it was purchased from the Airport Lumber Company in Florissant. The real estate agent, shown the exhibit, was asked “Can you tell one way or another whether or not that is identical or similar to the type plastic cover that was on the stairway when Mrs. Keith had her fall?” He answered, “I would say it would be, yes.” Subsequently, he said, “I would say it would be the same type of material.” The plaintiff’s objection, while Mr. Schmersahl was testifying, was “because the plastic we are concerned with is the plastic that was down there on that particular day and I object to similar or like plastic.” When the real estate agent testified the objection was “It’s irrelevant and immaterial as being the same or similar unless it is identical to the plastic that was on there. I object to the form of the question.”

But if the plastic was “identical or similar” there could be no problem of its having “remained in the same condition” as the bullet-ridden door in a homicide (State v. Goddard, 146 Mo. 177, 48 S.W. 82) and there was not and could not be an objection that by reason of remoteness of time the conditions were not sufficiently identical or similar and therefore had lost probative force. New Era Manufacturing Co. v. O’Reilly, 197 Mo. 466, 95 S.W. 322. The plaintiff offered in evidence exhibit A which Mrs. Keith identified as a photograph of the steps on which she fell, including, except for the quarter round holding the plastic on each step, the plastic covering. The essential issue was whether when Mrs. Keith fell the plastic on the stairway was “slick” and “loose.” In these circumstances, the plastic strip being “identical or similar” and the immediate question being whether it was “slick,” the exhibit, obviously, was helpful to the jury, certainly its admission in evidence was not manifestly prejudicial. Asbury v. Fidelity National Bank & Trust Co., 231 Mo.App. 437, 442, 100 S.W.2d 946, 949-950.

An engineer made certain tests with this particular strip of plastic and it is objected that the court erred in permitting him to testify to the results of his experiments because it “created a false situation with the jury in that they were led to believe that the plastic upon which plaintiff had fallen was not slick or slippery.” It is said that this information “came about because of the results of the tests on Exhibit 2 which was not proven to be the plastic upon which plaintiff fell.” It may be that what has been said as to the admissibility in evidence of the exhibit is sufficient to inferentially dispose of this objection. But, tests aside, the material was “identical or similar” and undoubtedly the jury was as capable as any witness of judging whether or not it was “slick.” The simple test performed by the engineer, pulling a weighted block with a scale attached across eight types of material employed as floor covering, was not particularly impressive from a scientific standpoint (Annotation 76 A.L.R.2d 354, 374), but from mere observation the jury was as capable of drawing the proper inference as was the expert (James v. Kansas City Gas Co., 325 Mo. 1054, 1070, 30 S.W.2d 118, 124), and in all the circumstances it may not be said that the trial court manifestly abused its discretion in permitting the witness to testify as to the results of his experiments. Lynch v. Missouri-Kansas-Texas R. Co., 333 Mo. 89, 61 S.W.2d 918.

As a matter of fact the essentially meritorious question upon this appeal is whether the court prejudicially erred in instructing the jury, particularly in omitting from the instructions given at the defendant’s behest the requirement or hypothesis that appellant contends was the essential issue, the absence of a handrail on the stairway. In so far as material here the hypothesis of plaintiff’s instruction 1 was “and if you further find and believe that this plastic was slippery and loose and that said stairway contained no handrail.” Defendant’s instruction 2 made no reference to a handrail, it simply told the jury that “unless you find and believe from the evidence that the plastic cover on the stairway in question was slippery and loose, and that plaintiff was caused to fall and be injured by reason of said slippery and loose condition” the verdict should be for the defendant. Likewise as to contributory negligence in its instruction 3 there was no reference to a handrail, in substance a verdict was directed upon a finding that Mrs. Keith saw or should have seen and known “of said plastic cover and of its looseness and slipperiness.” As indicated, it is urged that these instructions were prejudicially erroneous in omitting from their hypotheses the absence of a handrail. For example, as to instruction 2 it is said that in omitting this element it is not a “complete converse instruction.” And it is said that the contributory negligence instruction “emphasizes certain parts of plaintiff’s evidence (plastic) without consideration to the remainder of plaintiff’s evidence (handrail).” Therefore it is urged that these instructions misdirected the jury and unfairly circumscribed the factual basis of her recovery. Freeman v. Myron Green Cafeterias Co., (Mo.), 317 S.W.2d 303; Phillips v. Vrooman, 361 Mo. 1098, 238 S.W.2d 355.

As stated in the beginning, Mrs. Keith said “there was no handrail to grab,” that she “reached and my arm scraped the wall.” The plaintiff’s status was that of an invitee, but certainly there is some common knowledge as to what is and is not a safe inside stairway to a basement family room and in that respect there is perhaps a difference in steps in a hotel or other public building and a display residence. But in addition to the noted evidence Mrs. Keith said that as she landed at the bottom of the stairway the real estate salesman said, “There should have been a handrail there.” Other than this exclamation there was no testimony by an architect or other person qualified to speak on the subject that for lack of a handrail this inside stairway was hazardous. McStay v. Citizens National Trust & Savings Bank, 5 Cal.App.2d 595, 43 P.2d 560; Coxey v. Guala, 112 Pa.Super. 460, 171 A. 484; Union Bank & Trust Co. of Los Angeles v. Hattie Carnegie, Inc., 1 A.D.2d 199, 149 N.Y.S.2d 122; Brooks v. Bergdorf-Goodman Co., 5 A.D.2d 162, 170 N.Y.S.2d 687; Renfro Drug Co. v. Jackson, (Tex.Civ.App.), 81 S.W.2d 101.

In determining whether due care has been exercised the presence or absence of a handrail is a factor to be considered along with other physical factors (Anderson v. Younker Brothers, Inc., 249 Iowa 923, 89 N.W.2d 858) but in a “display home” the mere absence of a handrail on an inside flight of five or six stairs is not sufficient in and of itself to support the inference of negligence. Annotation 64 A.L.R.2d 398, 436; Stoll v. First National Bank of Independence, 234 Mo.App. 364, 375, 132 S.W.2d 676, 682, and Rush v. Townsend and Wall Company, (Mo.), 343 S.W.2d 44, an allegedly slick handrail case. Lewis v. Gershon, (Mo.App.), 335 S.W.2d 522, was a landlord and tenant case and was concerned with an outside stairway, but of a plaintiff’s instruction the court said, “[a] reading of the entire instruction indicates that the jury was, in effect, told that it was the duty of defendant to maintain handrails. There is no such duty in this case.” In the posture of this record, in short, there was no duty to provide handrails and the mere absence of handrails on these particular steps could not be a ground of recovery as hypothesized in plaintiff’s instruction 1. And as of course, therefore, defendant’s instructions 2 and 3 were not manifestly and prejudicially erroneous in their failure to converse or include the absence of handrails. There was an evidentiary basis for the contributory negligence instruction and its hypothesis is fairly comparable to the instruction in Tomlin v. Alford, (Mo.), 351 S.W.2d 705.

Instruction 7 told the jury that defendant was not an insurer of the safety of its premises “and the mere fact of itself that plaintiff has brought suit alleging that defendant was negligent is no evidence whatever that defendant was in fact negligent.” The jury was then told that negligence was not “in law presumed” but must be established by proof as explained in other instructions. The instruction then admonished the jury against “surmise, guesswork and speculation” and concluded by saying that if they were unable to find the defendant negligent without resorting to speculation and guesswork their verdict should be for the defendant. It is said that this instruction “allowed a verdict upon partial surmise, guesswork and speculation” and in its use of the “mere fact” language falls within the condemnation of Wise v. St. Louis Public Service Co., (Mo.), 357 S.W.2d 902.

As to the first objection or interpretation of the effect of the instruction and its permitting a verdict on “partial” surmise and speculation, it would seem, if that is its purport, that it would be an error in the.plaintiff’s favor. But unlike the Wise case, this was not a res ipsa loquitur submission and the cause was tried prior to the decision of the Wise case. Furthermore, instruction 7 is not comparable in either form or substance to the condemned instruction in the Wise case. The instruction there was truly-concerned with the burden of proof in a res ipsa loquitur case, and in its second paragraph said, “You should not find that the defendant was negligent from the mere fact of the occurrence shown by plaintiff’s evidence.” See also Sutton v. Fox Missouri Theatre Company, (Mo.), 356 S.W.2d 41, and its "the mere fact that plaintiff was injured by a fall." It was said in condemnation of the instruction in the Wise case that the italicized language was “argumentative and in certain circumstances confusing.” Instruction 7 does not mention “the mere fact of the occurrence” or refer to “the mere fact that plaintiff was injured” (Grote v. Reed, (Mo.), 345 S.W.2d 96), it referred only to the mere fact that plaintiff had brought the suit and it told the jury that defendant was not an insurer of the safety of its premises and could only be found liable for the plaintiff’s injury if negligent (Kamper v. United Telephone Co., (Mo.), 259 S.W.2d 801; Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158), and the plaintiff does not complain of the jury’s being admonished against basing a verdict upon mere speculation and guess. Le Grand v. U-Drive-It Co., (Mo.), 247 S.W.2d 706, 711.

Instruction 8 was another abstract instruction cautioning the jury against passion and prejudice. It told the jury that it was their duty to decide first, under all the facts and circumstances, whether plaintiff was entitled to recover, prior to the determination of that question they were told that they had no right “to consider the amount of the plaintiff’s damages.” In employing this terminology and in thus cautioning the jury the instruction was neither misleading nor a misdirection. Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 1082, 246 S.W.2d 749, 755; West v. St. Louis Public Service Co., 361 Mo. 740, 236 S.W.2d 308.

In conclusion it may be said as to both instructions 7 and 8 that this case involved simple, easily understood issues and there is no demonstration that the jury was misled or misdirected to the plaintiff’s manifest prejudice. Sup.Ct.Rule 83.13(b), V.A.M.R. V.A.M.S. Sec. 512.160(2); Young v. Kansas City Public Service Co., (Mo.), 270 S.W.2d 788, 792. As to these instructions the case is certainly not comparable to the “utter confusion” created by the twenty-eight instructions in Sutton v. Fox Missouri Theatre Co., supra. As indicated, there was no manifestly prejudicial error and the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: BROADDUS, Presiding Judge.

text:
    Marie HAWLEY (Employee-Plaintiff), Appellant, v. EDDY BROTHERS, INC. (Employer-Defendant) and Hartford Accident and Indemnity Company, (Insurer-Defendant), Respondents.
    No. 23899.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.

      Thos. J. Daly, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, for appellant.
    Schwartz, Hoffman & Brockus, Leo T. Schwartz, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an appeal from the judgment of the Circuit Court reversing an award of the Industrial Commission in favor of claimant, Marie Hawley, on her claim against her employer, Eddy Brothers, Inc.

The testimony shows that the employer Eddy Brothers, Inc., operated a restaurant-in a leased building at the southwest corner of 13th and Baltimore Streets in downtown Kansas City. The front or customers’ entrance was at the corner of 13th and Baltimore Streets; the rear or west end of the building abutted on a paved alley, running north and south from 13th to 14th Street; the rear door through which the employees, entered and left the restaurant abutted this alley, and persons using the rear door-reached same by walking in this alley. The evidence further shows that this alley was used by members of the public including, among others, employees of the Kansas City Power and Light Company, tenants of other buildings abutting on this public alley, and by workmen, delivery men and other members of the public. There was no evidence that this alley was more hazardous than any-other public paved alley, public sidewalk or street, or when there was a general snowy and icy condition due to climatic conditions that this alley was more hazardous than other public paved alleys, public streets or sidewalks or that employees were subject to any greater hazard than the public generally.

Eddy Brothers employed various persons, such as janitors, dishwashers, kitchen help, food checkers and waitresses. They wanted to inspect and check the employees in and out, particularly for cleanliness as they handled the food. The front door heretofore described was the customers’ entrance and remained locked until 11 A.M. Many of the employees necessarily had to begin the preparation of food, etc., before the restaurant opened at 11 A.M. for serving meals. Considering the various types comprising the help, Eddy Brothers, Inc., did not want the kitchen help using the front door, mingling with the customers and coming through the main part of the restaurant to and from work. For these reasons they required the employees to enter and leave the premises through the rear door. It was stated that it was the custom of restaurants generally and of most business establishments for the employees’ entrance to be located in the rear of the building for various reasons.

The testimony of the appellant, Marie Hawley (the only witness who testified concerning her employment) was that she talked with Sam Eddy the day before, January 5, 1959, and was hired to work as a food checker. In this oral contract of hire nothing was said about which door appellant would have to use or any circumstances of her work or employment that were unusual. Her testimony was that a little lady that she worked with who was a food checker and who was to show her how to do food checking told her that the employees were to use the rear door in entering and leaving the premises. Appellant worked January 5th and during the course of that day was told that the employees used the rear door and she left by the rear door on that day.

There had been a snow storm in Kansas City on January 5th and there was snow and ice on the streets, sidewalks and alleys. On the day of the accident (January 6th) appellant traveled from her home by bus and after leaving the bus at 13th and Walnut Street she walked west on the public streets and sidwalks. At the west end of the restaurant building she entered the public alley where she slipped and fell before reaching the rear door of the restaurant premises. The weather and the ice and snow were very bad. Appellant admittedly fell on her way to work and at the time she fell she had not entered the restaurant premises and had not done any work that day.

In reversing the award of the Industrial Commission the Circuit Court followed the decision of the St. Louis Court of Appeals in the case of Donzelot v. Park Drug Co., Mo.App., 239 S.W.2d 526. In that case the court held that where the employee sustained injuries when she slipped and fell on ice on the public sidewalk in front of the employer’s place of business while leaving work at the regular hour of departure, the employee was not injured as a result of accident arising out of and in the course of her employment. That well considered opinion written by Presiding Judge Anderson quotes from cases from other states which presented facts quite similar to those disclosed in the case now before us, and which hold that no recovery can be had under such circumstances. The following additional cases likewise support the holding in the Donzelot case: Simpson v. Lee and Cady, 294 Mich. 460, 293 N.W. 718; Amento v. Bond Stores, Inc., 274 App.Div. 863, 82 N.Y.S.2d 1; Krebs v. Industrial Commission, 200 Wis. 134, 227 N.W. 287; Sommers v. Schuler Chocolates, Inc., 239 Minn. 180, 58 N.W.2d 194; Madison v. Key Work Clothes, 182 Kan. 186, 318 P.2d 991; Simonson v. Knight, 174 Minn. 491, 219 N.W. 869.

In the Simpson case, supra, the claimant, on his way to work, had reached the very doorstep of his employer’s building, and, in the act of reaching for the door handle, had actually extended his hand across his employer’s property line. At that moment he slipped on the ice on the public sidewalk and fell. An award was reversed on the ground that the claimant’s feet, so to speak, were still subject to the common risks of the street.

As stated in the Simonson case, supra: “Relator (claimant) would not have reached her ‘working premises’ if she had been on the street in front of the building or in the alley or street in the rear of it,”

Appellant argues that her claim is an exception to the rule announced in the Don-zelot case because the employer had a rule that appellant and other.employees were to use the rear door leading into the public alley in entering and leaving the restaurant rather than use the customer’s or front entrance leading onto the public sidewalk. This requirement, appellant asserts, was a part of the employment contract and created a situation or a circumstance of such an unusual character as to make this claim compensable when similar factual circumstances are held non-compensable. The contention is unsound. The requirement that appellant use the rear door was not a condition or special provision in her employment contract or brought about by any special circumstance of her particular employment. It was a general rule or requirement applicable to all employees. And the facts which we have set out disclose that the employer had good and sufficient reasons for the rule. There was undisputed evidence that it was the custom of restaurant and other business establishments to require their employees to enter and leave the employer’s premises by the rear door or an employee’s entrance. A rule or practice that is so widespread and universal ought not to be construed into a special circumstance extending the premises of the vast majority of employers to the public streets, alleys and sidewalks.

Appellant in her argument makes the broad statement “that Missouri statutory law explicitly provides that employees are entitled to Workmen’s Compensation benefits when the employee receives injuries ‘ * * * on or about the premises where their duties require their presence as a part of such service’, Section 287.020(5) R.S.Mo. 1949” from which it is argued that she was where she was when she was injured because the employer required that she use the rear door and alley. This broad statement conveys an erroneous impression of what section 287.020 actually provides and ignores the limitations and qualifications expressly stated therein. Subsection 5 of Section 287.020 is as follows:

“Without otherwise affecting either the meaning or interpretation of the abridged clause, ‘personal injuries arising out and in the course of such employment,’ it is hereby declared not to cover workmen except while engaged in, or about the premises where their duties are being performed, or where their services require their presence as a part of such service.”

Properly construed this subsection is one of exclusion rather than one of inclusion as appellant has construed the same. The subsection excludes injuries to a workman except when cither the workman is performing his services in, on or about the employer’s premises, or when the workman is not on the premises but is engaged in performing his services for the employer. In either event when injured he must be engaged in the performance of his services for the employer. At the time of her injury the appellant was neither on the employer’s premises nor performing any of the employer’s services. With reference to this statute this is precisely what the Court of Appeals pointed out in the Donzelot decision, supra.

The three cases cited by defendant are readily distinguishable from the case now before us.

The judgment is affirmed.

All concur including HIGGINS, Special Judge.


author: HUNTER, Judge.

text:
    James Alexander JONES and Joan Marie Jones, Respondents, v. HAINES, HODGES & JONES BUILDING AND DEVELOPMENT CO., Appellant.
    No. 23835.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.
    John F. Thice and Gilbert R. Titus, Independence, for appellant.
    Reginald A. Smith, Independence, for respondents.
   HUNTER, Judge.

Appellant-defendant, Haines, Hodges & Jones Building and Development Company, has appealed from an adverse judgment of the Circuit Court of Jackson County at Independence, declaring the rights of the parties under a restrictive covenant and permanently enjoining a threatened violation. The sole contention of error is that the trial court misconstrued one of the covenant restrictions.

In 1951 John Herbert Whitehead and his wife placed of record a plat of Whitehead Heights, a subdivision in Jackson County, Missouri. This subdivision consists of 12 lots, all of which are 200 feet deep and face-north along 39th Street. Lot 1 is 120 feet wide and Lot 12 is 117.25 feet wide. Each of the other ten lots is 100 feet wide. There is a building setback line 50 feet from the south edge of 39th Street and a utility easement over the south 10 feet on all 12 lots.

In 1952 the Whiteheads placed of record certain restrictions to run with the land. The one here in controversy reads:

“No residential structure shall be erected or placed on any building plot, which plot has an area of less than 20,000 square feet or a width of less than 100 feet at the front building setback line.” (Italics ours.)

In 1957 plaintiffs, James Alexander Jones and Joan Marie Jones, acquired ownership of Lot 11 subject to restrictions of record. At that time ranch type homes had been erected on 8 of the 12 lots, and plaintiffs then built and occupied a similar home on Lot 11. Shortly thereafter a ranch type home was built on another of the lots, leaving only two lots, including Lot 12, vacant.

On March 30, 1959, the Whiteheads conveyed to defendant ownership of Lot 12 subject to restrictions of record. On June 4, 1959, defendant placed of record a plat including resubdividing Lot 12 by dividing that lot into two plots, each 100 feet north and south by 117.25 feet east and west and by changing a part of the building setback line on the west side and adding a 15 foot sewer easement. Defendant informed plaintiffs it intended to build two houses on Lot 12.

Plaintiffs filed suit asking for a declaratory judgment, declaring the restrictive covenant valid and seeking an injunction of the proposed house construction. The trial court ruled favorably to plaintiff, declared the proposed buildings being built on a plot of less than 20,000 square feet to be in violation of the restrictive covenant and issued the requested injunction. This appeal followed.

Defendant contends the word “or” used in the restrictive covenant is used in the disjunctive and as so used permits the owner of a lot “to utilize the property in one of two ways, either by building a house on one of the lots if it had 20,000 square feet ‘or’ if there was not 20,000 square feet, then the lot would have to be 100 feet wide at the front building setback line.” Plaintiff and the trial court construe the covenant to mean that any of the lots to be built on must meet both restrictions, namely, contain at least 20,000 square feet and also have a width of at least 100 feet at the front building setback line.

The fundamental rule in construing restrictive covenants is that the intention of the restrictor as shown by the written instrument governs. An aiding principle is that, subject to the fundamental rule, restrictive covenants are strictly construed m favor of free use of property. Wilson v. Owen, Mo.Sup., 261 S.W.2d 19.

The principle that restrictions as to the use of real estate should be strictly construed and doubts resolved in favor of the free use of property should never be applied in such a way as to defeat the plain and obvious purpose of the restriction. Absurd interpretations are always to be avoided.

As we view the restriction it plainly means that no residential structure shall be erected on a plot which has either an area of less than 20,000 square feet or a width of less than 100 feet. Or differently stated, if the plot does not have 20,000 or more square feet and a width of 100 or more feet at the front building setback line no house can be erected on it. This is the clear meaning of the words used.

Our view of the restriction is fully supported by the original subdivision plat to which the restrictive covenant applies. This plat evidences a uniform plan for development. Every lot from 1 through 12 had a 200 foot length, with a utility easement for water, gas, sewer pipes, poles, wires and anchors across the back of each lot. Every lot on its front had a “building limit line” parallel to 39th Street. It it apparent from the position of the setback lines, the utility easement and the way the other houses were intended to, and did, face 39th Street that it was also contemplated that any house built on Lot 12 should likewise face 39th Street. Here, to divide Lot 12 into two parts, each part not having the prescribed square feet and width with one of the proposed houses not facing 39th Street is obviously not in accord with the intent of the restrictive covenant and the subdivision plat.

Appellant cites several cases to the general effect that the word “or” as used in a particular context is a disjunctive and means an alternative; that is, that you may make a choice. However, as earlier noted, it is the intention expressed in the covenant read as an entirety that controls, and there are many cases in which our Supreme Court has ruled that the word “or” does not provide an alternative but partakes of the sense of “and” or “and also”. See, Ex parte Lockhart, en Banc, 350 Mo. 1220, 171 S.W.2d 660, 666; State v. Bradley, 352 Mo. 780, 179 S.W.2d 98, 100; State ex rel. Stinger v. Krueger, 280 Mo. 293, 217 S.W. 310, 315; Mott v. Kansas City, Mo.App., 60 S.W.2d 736, 741.

The judgment is affirmed.

All concurring, including HIGGINS, Special Judge.


author: CROSS, Judge.

text:
    Donald H. KENWARD, Plaintiff-Appellant, v. Jewell HULTZ, Defendant-Respondent.
    No. 23718.
    Kansas City Court of Appeals. Missouri.
    June 28, 1963.

      George W. Meyer, Roger W. Penner, Meyer, Smith, Shute & Penner, Kansas City, for appellant.
    Fred J. Freel, Norman O. Sanders, Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, for respondent.
   CROSS, Judge.

Plaintiff sues to recover damages for personal injuries suffered on defendant’s premises when a dirt trench in which he was digging caved in, and a large quantity of dirt partially buried him. The case was tried to a jury which returned a verdict for plaintiff in the sum of $3000.00, upon which judgment was duly entered. On motion by defendant, the trial court set aside the verdict and judgment in favor of plaintiff and entered judgment in favor of defendant. Plaintiff appeals.

All of the evidence in the case was adduced by plaintiff, who testified in his own behalf, introduced a deposition of the defendant and also called and examined defendant as a witness. At the conclusion of plaintiff’s evidence, defendant filed a motion for a directed verdict which the trial court denied. Defendant declined to go forward with any evidence and rested upon his motion. The facts which follow were developed by plaintiff’s evidence.

Plaintiff and defendant are brothers-in-law, the former having married the latter’s sister. They are “good friends” who visit each other and “more or less helped each other back and forth”, without receiving any pay for so doing. Plaintiff is a “combustion engineer” employed by the Sheffield Steel Company. He is a graduate of Kansas University with a Bachelor of Science degree in mechanical engineering. Defendant has been employed primarily as a truck driver and a salesman.

As noted above, plaintiff was injured while working in a trench, on defendant’s residence property, which had been excavated for the purpose of re-laying sewer pipe. The trench had been principally dug by defendant, with some help from his son, on the day before and on the morning of the casualty, and was about 2(4 to 3 feet wide, 7 feet deep and approximately 60 to 70 feet long. It had straight, vertical walls and was not shored or braced. The dirt which had been removed in the digging process was piled mostly on the east side of the trench (which ran north and south), and was piled on that side to within a foot of the edge of the excavation and to a height of 5 or 6 feet.

Before defendant started excavating the trench he had called and requested plaintiff to help on the project. In response plaintiff presented himself at defendant’s premises to assist in the digging operations. He arrived at about nine o’clock in' the morning on the day after defendant started the work and found defendant working in the bottom of the trench. After talking to defendant for a minute or two, plaintiff also descended into the trench and commenced digging to uncover the sewer pipe. After throwing out a few shovelsful of dirt, plaintiff discovered that the trench was not coincident with the sewer line and talked to defendant about “the problem of the sewer pipe being off to the side of the trench back in the wall”, (on the east side of the trench where most of ■ the dirt had been piled). Defendant then asked plaintiff to undercut the wall in order to expose the sewer tile. Plaintiff began to dig “into the wall” and shortly thereafter, the trench collapsed at the place plaintiff had been undercutting and covered plaintiff’s body “about” up to his shoulders. The “chunk” of dirt that fell on plaintiff was. about 6 to 8 feet wide and varied in thickness from about a foot to 18 inches at the top to about 2½ to 3 feet at the bottom. Plaintiff received painful, permanent and! disabling injury to his right knee.

The defendant testified that the soil in which the trench was dug was soft, sandy, loose and crumbly — “what you might call river bottom soil”; that he did not warn plaintiff of the nature of the soil because he “didn’t think of it”; that the soil he had piled up on the east side of the trench had “considerable weight to it”; that he had no knowledge and saw nothing to indicate that there was any danger to plaintiff in going into and digging in the trench; that it didn’t occur to him that the piling of dirt on top of the trench increased the danger of it caving in; that there was no appearance, anywhere, that the trench was dangerous and unsafe; and, that “the work that had to be done in removing this tile was obvious”. Defendant stated, “I wouldn’t have been in there if I had thought there was any danger”. There was no discussion at all between plaintiff and defendant about whether or not it was dangerous to work in the trench. Defendant further testified that the work plaintiff did was for the sole benefit of defendant and his wife.

Plaintiff testified that he did not observe any dangers of any kind when he arrived on the scene or after he got down into the trench. He stated that the dirt he saw piled up on top of the trench was black and “looked like ordinary dirt”, that he noticed nothing unusual about the dirt he shoveled out, and didn’t notice anything in all the time he was shoveling that the earth was sandy or crumbling but that “if I had of I’d have sure got out of there”. It was obvious to plaintiff that the trench was not braced or shored. Plaintiff neither expected nor received any pay for his assistance in digging the trench.

Some time prior to the events narrated above, defendant had helped plaintiff dig a trench on the latter’s property from the house to a septic tank for the purpose of replacing lateral pipes. This operation was similar in nature to the trench excavation on defendant’s property, except that the plaintiff’s trench was smaller and shallower. Defendant received no pay for helping plaintiff on that occasion.

Plaintiff submitted his case to the jury on the theory that the trench wall was dangerous and unsafe and liable to cave in and injure a person undercutting into the east wall because it was composed of soft, sandy loam of such character that, unless shored or braced, would likely crumble and collapse, and because of the added weight of the dirt which defendant had removed and piled on top of the ground near the edge of the trench; that defendant knew or should have known of such danger and knew or should have known plaintiff was unaware thereof, but that he negligently failed to warn plaintiff of this peril; and, that defendant negligently instructed plaintiff to undercut the east bank.

The trial theory of defendant was that plaintiff failed to make a submissible case of actionable negligence because the evidence showed that any danger of a cave-in of the trench wall resulting from undercutting was obvious and equally apparent to plaintiff as to the defendant, that plaintiff voluntarily assumed the risk of injury; and, that plaintiff was guilty of contributory negligence which barred his recovery.

After the jury returned its verdict for plaintiff and judgment was rendered thereon, the defendant timely filed his motion to set aside that verdict and judgment and to enter a judgment in his favor in accordance with motions for directed verdict which he had previously filed, and, in the alternative, a motion for a new trial. The trial court sustained the first of the alternative motions without specifying the ground for such action, set aside the judgment previously rendered in plaintiff’s favor, entered judgment for defendant, and overruled defendant’s alternative motion for a new trial.

Plaintiff’s first point is a complaint that the trial court failed to specify the ground upon which it set aside the verdict and judgment in plaintiff’s favor and rendered judgment in favor of defendant, notwithstanding the motion upon which the court acted alleged numerous grounds. Plaintiff insists that such failure is a violation of the Civil Rules. We believe that plaintiff has only technical grounds for making this complaint.

The filing of defendant’s after-trial motion to set aside the verdict and judgment and for judgment in accordance with his motion for a directed verdict together with his alternative motion for a new trial is sanctioned by Civil Rule 72.02, V.A.M.R. The same rule prescribes the duty of the trial court in acting upon those motions. The rule does not mandatorily require that the court shall specify its reason or ground for reopening the judgment, and directing the entry of judgment as if the requested verdict had been directed. In this case the order of the court is in literal compliance with Rule 72.02.

However, decisions of Missouri appellate courts indicate that the better practice would be for the trial court to specify its reasons for setting aside a previously rendered judgment and entering a judgment in accordance with a motion for directed verdict. In Johnson v. Kansas City Public Service Co. et al., 358 Mo. 253, 214 S.W.2d 5, the Supreme Court stated: “The purposes of the new Code and Rules are to promote the orderly administration of justice and to seek the just, speedy, and inexpensive determination of every action. Code, §§ 2 and 10(b). When allowable after-trial motions are filed together with a motion for new trial with a prayer fcr relief in the alternative, the trial court, if it sustains the after-trial motion, should also pass on the motion for new trial, making its ruling in the alternative, and specify, as contemplated, the ground or grounds for its action.” Also, see Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782.

Plaintiff complains that an undue hardship has been cast upon him by the trial court’s failure to specify the grounds for setting aside the jury’s verdict and the judgment for plaintiff and entering judgment for defendant. Plaintiff insists that he is entitled to an order requiring defendant to assume the burden of proof to sustain the trial court’s after-trial rulings, or, in the alternative that the verdict and judgment in his favor should be reinstated. We find no support for these contentions in the authorities cited by plaintiff. The situation before us is not within the operation of Civil Rule 83.06(b) which provides that a respondent may be compelled to carry the burden on appeal when the trial court grants a new trial without specifying the grounds therefor. Even if there were merit in these contentions, plaintiff, having complained for the first time in this appeal, has waived the right to assert them.

The grounds upon which defendant relies to support the trial court’s action have been accurately anticipated by plaintiff in three additional points contained in his brief. It is contended by plaintiff that the court erred in ruling he was not entitled to recover because (1) plaintiff made a submissible case of actionable negligence, (2) plaintiff was not barred from a recovery under the doctrine of assumed or incurred risk as a matter of law, and (3) plaintiff was not guilty of contributory negligence as a matter of law. These three points are met and countered by defendant in his brief, and the appeal issues are thus drawn.

In the natural order of these questions, we next consider whether plaintiff made a submissible case. To that end we must first determine the extent of legal duty that was incumbent upon defendant to protect plaintiff from injury. Plaintiff insists that when he came upon defendant’s premises to render a service for defendant’s benefit he became an invitee to whom defendant owed a duty to exercise ordinary care to prevent plaintiff’s injury, and that such duty was breached by defendant with resultant injury to plaintiff. Defendant submits that plaintiff was not an invitee, but was a mere licensee, to whom no duty was owed by defendant except not to harm him intentionally or wantonly, or to injure him by active negligence. In the alternative, defendant says that even if plaintiff is held to be an invitee, the evidence considered in the light most favorable to plaintiff fails to prove that his injury was caused by any act or omission on the part of defendant that amounts to a breach of any legal duty owed by him as a landowner to plaintiff as an invitee or business, visitor.

In Miller v. Cracchiola, Mo.App., 321 S.W.2d 18, the court was confronted with a similar question. There the plaintiff sustained injuries at the home of her son-in-law and daughter, defendants in the case. Plaintiff had gone to those premises, at the express request of her daughter, for the sole purpose of baby-sitting with defendants’ child. Plaintiff contended that inasmuch as her presence at defendants’ home was an economic benefit to them, she had acquired the legal position of a business invitee. Defendant, on the other hand, contended that plaintiff was a gratuitous licensee — a social guest. In its opinion the court stated that the tenor of other cases involving similar relationships between the parties indicated that “where, as here, there is a close family relationship between the visitor and the owner or occupant of a home, persuasive evidence of a true business relationship is required to establish the status of the visitor as that of business invitee”. However, in view of the conclusion the court had already reached on the issue of negligence, it assumed for the purpose of its opinion, without so deciding, that plaintiff was an invitee.

Likewise, in this case, where the parties are also related by ties of affinity, we will assume for the purposes of this opinion, without deciding, that plaintiff was an invitee, or business visitor on defendant’s premises at the latter’s express invitation, and proceed to determine the remaining appeal issues under that assumption.

In Capobianco v. Yacovelli Restaurant, Inc., Mo.App., 360 S.W.2d 302, 305, the court said: “It is an elementary principle of the law of torts that there can be no actionable negligence in the absence of the existence of some duty on the defendant’s part owing to the plaintiff, which duty has been neglected or violated by the defendant, with the injury suffered by the plaintiff directly attributable thereto, and flowing therefrom”. Furthermore, as the Supreme Court cautions in Cameron v. Small, Mo.Sup., 182 S.W.2d 565, “⅛ * * we must have a regard for the distinction between negligence in its colloquial meaning, the want of ordinary care; and actionable negligence, negligence which breaches a duty owed the person injured”. Precisely, then, what duty did the defendant owe to his plaintiff brother-in-law under the facts in this case?

It has often been said by the courts that the owner, occupant, or person in charge of property owes to an invitee or business visitor the duty of exercising reasonable or ordinary care for his safety. Such statements are obviously in the nature of broad generalization and do not encompass the specific elements necessary to constitute a complete and definitive statement of legal duty. The law on the subject is clearly set forth in 2 Restatement of the Law of Torts, Sec. 343, page 938, as follows: “A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm * * * ”. The foregoing statement of the law is “firmly imbedded in the jurisprudence of this jurisdiction”, and has been repeatedly approved by the courts.

In the application of the rule above quoted it has been uniformly held that the owner or occupier is not an insurer of the business invitee’s safety, Main v. Lehman, 294 Mo. 579, 243 S.W. 91, and that “The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, and in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. The invitee assumes all normal, obvious, or ordinary risks attendant on the use of the premises, and the owner or occupant is under no duty to. reconstruct or alter the premises so as to obviate known and obvious dangers.” Dixon v. General Grocery Co., Mo.Sup., 293 S.W.2d 415.

In Harbourn v. Katz Drug Co., Mo.Sup., 318 S.W.2d 226, the Supreme Court said: “It follows that when the condition contended to constitute an unreasonable risk is obvious to one in the exercise of ordinary care, or is actually known to the invitee, there is no duty on the owner or occupier to warn him. Summa v. Morgan Real Estate Co., supra (2) [350 Mo. 205, 165 S.W.2d 390]; Wiedanz v. May Department Stores Co., Mo.App., 156 S.W.2d 44(4). Therefore an owner or occupier is not liable for injuries resulting from open and obvious conditions which are or should be as well known to the invitee as to the owner or occupier. Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756 (5); Cameron v. Small [Mo.App., 182 S.W.2d 565], supra (6); Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97, 100”. And, in Dixon v. General Grocery Co., supra, the Supreme Court also stated (in reference to similar rulings) : “These decisions mean that an inviter is under no duty to protect an invitee who is in an equal position to protect himself.” To the same effect is the rule stated in Prosser on Torts, 2d Ed., Sec. 78, p. 459, approved in Stafford v. Fred Wolferman, Inc., Mo.Sup., 307 S.W.2d 468, quoted as follows: “ * * * in the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so apparent that he may reasonably be expected to discover them and be fully able to look out for himself”.

Thus, as the courts have often held, the true basis of a landowner's liability is his superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Capobianco v. Yacovelli Restaurant, Inc., supra; Harbourn v. Katz Drug Co., supra; Stafford v. Fred Wolferman, Inc., Mo.Sup., 307 S.W.2d 468; 65 C.J.S. Negligence § 50, p. 543; 38 Am.Jur., Negligence, Sec. 97, p. 757.

Adhering to the foregoing principles of law, we conclude that there is no substantial evidence before us to support a finding that defendant has breached any legal duty owing to plaintiff. There is nothing in the record to show that when plaintiff came upon defendant’s premises and started to dig in the trench there was any condition present involving an unreasonable risk to his safety or that constituted a hidden danger, trap, snare or pitfall. The condition of the trench and any risk incident to digging therein were as apparent and obvious to plaintiff as to defendant. Plaintiff testified that he observed that the trench had straight, vertical walls, that it was unshored, and that everything about it was open, obvious and apparent to him. He saw its length, breadth and depth, and observed the nature and quality of the soil, both excavated and un-excavated. By the use of his senses plaintiff could know and appreciate any existing danger to the same extent as could defendant, with whom he stood in at least equal position to protect himself, unless, for some reason disclosed by the evidence, defendant had superior knowledge of the risks involved in the work — in particular, the likelihood of the trench wall collapsing.

We believe there is no evidentiary basis or justification for a finding or any inference, reasonable in nature, that defendant’s knowledge of the situation in question and the risk involved was any greater than that possessed by plaintiff. In fact, it appears more reasonable to believe that superior knowledge and experience were on the side of plaintiff, inasmuch as he was a graduate engineer, necessarily schooled in the laws and forces of nature and devoted by occupation to their use, and, as the evidence shows, familiar to some extent with construction work; whereas, defendant was a salesman and truck driver without previous knowledge of or experience in construction work or excavations — except for his work in the two trenches dug on the premises of the respective parties and “digging out skunks” when he was in high school.

It should have been equally apparent to plaintiff, the engineer, as it was to defendant, the layman, that to undercut the trench at its base and remove the supporting dirt might activate the force of gravity and cause the overlying mass to collapse and fall. However, having undertaken that course of action, even though he did so at defendant’s request, plaintiff was in a position of superior opportunity to observe the progress of such work and to gauge the effect of his shovel as he continued to undercut the soil, inasmuch as he was the very instrumentality of such operation. In that situation, it devolved upon plaintiff to protect himself from a danger better known to himself than to his brother-in-law.

In view of our conclusion that plaintiff has not established the breach of a legal duty on the part of defendant, we necessarily rule that plaintiff has not made a submissible case. That reason alone is sufficient to justify the trial court’s action in sustaining defendant’s after trial motion, setting aside the verdict and judgment for plaintiff, and entering judgment for defendant. Therefore, it is not necessary that we decide, as separate points, whether plaintiff was barred from recovery under the doctrine of assumed risk or because he was guilty of contributory negligence, as matters of law.

The judgment is affirmed.

All concur.

      . Laube v. Stevenson, 137 Conn. 469, 78 A.2d 693, 25 A.L.R.2d 592; Lubenow v. Cook, 137 Conn. 611, 79 A.2d 826; Colbert v. Ricker, 314 Mass. 138, 49 N.E.2d 459, 147 A.L.R. 647; Mitchell v. Legarsky, 95 N.H. 214, 60 A.2d 136.

      . Wolfson v. Chelist, Mo.App., 278 S.W.2d 39, affd., Mo.Sup., 284 S.W.2d 447; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Edwards v. E. B. Murray & Co., Mo.App., 305 S.W.2d 702; Miller v. Cracchiola, Mo.App., 321 S.W.2d 18.

      .Wilkins v. Allied Stores of Missouri, Mo.Sup., 308 S.W.2d 623; Dean v. Safeway Stores, Mo.Sup., 300 S.W.2d 431; Also see Harbourn v. Katz Drug Co., Mo.Sup., 318 S.W.2d 226; Capobianco v. Yacovelli Restaurant, Inc., supra; Dixon v. General Grocery Co., Mo.Sup., 293 S.W.2d 415; Gruetzemacher v. Billings, Mo.Sup., 348 S.W.2d 952.

      . Citing, 65 C.J.S. Negligence § 50, p. 541; Harbourn v. Katz Drug Co., Mo.Sup., 318 S.W.2d 226, 229, 74 A.L.R.2d 938; Dixon v. General Grocery Co., Mo.Sup., 293 S.W.2d 415; Small v. Ralston-Purina Co., Mo.App., 202 S.W.2d 533.

      . Also see 20 R.C.L., par. 52, p. 56, which states: “The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger thereof to persons going on the property. It is when the perilous instrumentality is known to the owner and occupant and not known to the person injured that a recovery is permitted, » * * and, hence, there is no liability for injuries from dangers that are obvious or as well known to the person injured as to the owner or occupant.” This rule is quoted in Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, with the statement that the text “is supported by abundant authority, and has become well settled in Missouri.”


text:
    Eugene PIERCE, Respondent, v. LUCE MANUFACTURING COMPANY, and Michigan Mutual Liability Company, Appellants.
    No. 23801.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.

      Joseph B. Bott, Kansas City, for appellants.
    Morrison, Hecker, Cozad & Morrison, Byron J. Beck, Kansas City, for respondent.
   CROSS, Judge.

This is a workmen’s compensation case. The employer, Luce Manufacturing Company, and its insurer have appealed from a judgment of the circuit court affirming the Industrial Commission’s final award of compensation benefits in the sum of $1,127.37 to claimant-employee Eugene Pierce.

On November 17, 1958, claimant was employed by Luce as its credit manager and started to work in that capacity at the company’s office and plant located at 6300 St. John, in Kansas City, Missouri. On the same day, and while engaged in his employment duties, he received injuries when he fell against a piece of broken glass from a window which was cracked and blown in by the wind.

Claimant went to work about 8:00 o’clock on the morning of the day noted and was assigned a desk next to a window in the southwest corner of the building. The window was approximately 6 feet high and 12 to 15 feet long. The desk was “immediately next to the window, approximately the middle”. As claimant sat at the desk he was “sideways” to the window, and 3 or 4 feet from it.

The incident which caused the injuries occurred at approximately 12:30 P.M. during a rainstorm which was accompanied by high winds. As claimant was seated at that time in the position above described, with his knees under the desk, a gust of wind cracked the glass of the adjacent window and blew fragments from it into the room. Claimant heard the glass crack and “ducked away from it” attempting to avoid the incoming pieces. He stated that in so doing he turned suddenly and caught his knee on the side of the desk, and was thereby caused to fall against the floor with his hands extended to protect himself from falling flat. He testified, “By the time I got to the floor glass had blown over me and I fell with one hand on a piece before I could stop myself”. Claimant thereby sustained a laceration of his left hand which has caused a degree of permanent partial disability. The piece of glass which claimant fell upon and which cut his hand was not blown directly upon him but was already on the floor before he fell against it.

Claimant testified that the day of November 17th was very windy and rainy, that it started out to be windy when he went to work that morning and that the rainstorm and wind increased its intensity throughout the day. He stated that he didn’t know the wind velocity but knew it was very strong and came in gusts. He didn’t know whether it was “one of those gusts that blew out the window”, but he knew “something blew it out”.

An employee of Luce, who had been with the company since 1928, testified on its behalf that “It was raining and blowing, very stormy”, and that it had been blowing off and on all morning. He further stated that the window above referred to was the only one blown out on the day in question and that to his knowledge no window had ever been blown out of the building before.

Over claimant’s obj ection Luce introduced in evidence employer’s Exhibit No. 1, a document which purports to be a report from the United States Weather Bureau maintained at the Kansas City Municipal Airport, across the Missouri River from Luce’s building and several miles away. The exhibit was admitted without any identification and over claimant’s objection. It shows by routine recordings entered in printed blank spaces that on November 17th, 1958, the average wind velocity was 22 m. p. h., and that the “fastest mile” relative to wind velocity on that day was at a speed of 56 m. p. h. recorded at 4:23 P.M. A typewritten notation at the bottom of the routine recordings states “considerable wind damage occurred over the area during the afternoon and evening of the 17th. Gusts reaching 75 m. p. h. were observed”.

From the evidence adduced at the hearing before the referee, that official found that there was an accident, that claimant was in Luce’s employ at the time thereof, and that it arose out of and in the course of the employment. Additional findings of the referee are as follows: “Employee, in ‘ducking’ and jerking away from a cracking window, struck his knee on his desk, which caused him to fall to the floor and injure his left hand on some glass which was on the floor. ... I find from the evidence that on the 17th day of November, 1958, Eugene Pierce, while in the employ of Luce Manufacturing Company, sustained an accident arising out of and in the course of his employment causing an injury to the left, upper extremity resulting in permanent partial disability * * * On the basis of the foregoing findings (and additional findings not pertinent here) the referee awarded claimant compensation in the sum we have previously noted.

Upon review the Industrial Commission found that the referee’s award was supported by competent and substantial evidence, adopted his findings of fact, rulings and conclusions of law, and affirmed and adopted his award of compensation to claimant.

In a single point appellants contend essentially that the evidence shows as a matter of law that the accident causing claimant’s injury directly and proximately resulted from the forces of nature or an act of God. Relying upon the rule followed by Missouri courts to the effect that an injury caused by an act of God is not compensable unless it is shown that the nature of the employment subj ected the employee to hazards therefrom greater than those to which the public generally is exposed (see Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296), appellants argue (on the assumption the injury was caused by act of God) that there is no evidence in the record to show that claimant Pierce was subjected to such increased hazards because of his employment, and that, therefore, it must be held as a matter of law that his injury did not arise out of his employment and is not compensable. Appellants admit, in effect, that claimant suffered an accident and that it arose in the course of his employment.

Respondent takes the position (1) that there is no evidence to show that an act of God caused the window to break and (2) that, even assuming the window was blown in by an act of God, the evidence does not support a determination that the wind was the sole cause of claimant’s injury but that, on the contrary, it is sufficient to support the finding that the accident and injury arose out of the employment.

The ultimate appeal issue is whether or not claimant’s accident arose out of his employment. Pertinent to our decision of this question are two fact issues which we define as follows: (1) Could the Commission have reasonably found that the accident was not the result of an act of God? (2) Assuming that under the whole record it must be held as a matter of law that the accident was an act of God, is there any substantial competent evidence from which the Commission could have found that the nature of claimant’s employment subjected him to hazards from the act of God over and above those to which the public generally is exposed, and thus justify the ultimate finding that the accident arose out of the employment?

The fact issues raised here are not triable de novo by this court. Our review of decisions made by the Industrial Commission on questions of fact is limited to a determination of whether its findings are supported by “competent and substantial evidence upon the whole record”. V.A.M.S. Constitution, Article V, Sec. 22. “This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could reasonably have made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Kansas City v. Rooney, en Banc, 363 Mo. 902, 254 S.W.2d 626”. Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296.

From our review of the record we conclude that it contains substantial, competent evidence that plaintiff’s injury was not caused by an act of God and that the Commission would have been justified in so finding. Corrington v. Kalicak, Mo.App., 319 S.W.2d 888, an “Act of God” is defined as “ ‘an occurrence due to natural causes against which ordinary skill and foresight is not expected to provide.’ * * * It is an event in nature so extraordinary that the history of climatic variations in the locality affords no reasonable warning of their coming.” Illustratively, so far as the force of wind is concerned, a tornado would meet the defined test. Williams v. Great Atlantic & Pacific Tea Co., supra.

In this case there is little evidence of substance to support a finding that the gust of wind which broke the window was an act of God as it is defined and recognized by the courts. Aside from the weather report, there is no showing other than that the wind and rains which began on the morning of November 17th increased during the day, that “it was very windy and rainy”, that the wind velocity was “very strong” and “came in gusts”, that “it was raining and blowing, very stormy”, and that “it had been blowing off and on all morning”. There is no evidence whatsoever to indicate the velocity of the wind gusts at the Luce plant or in that neighborhood. There is no showing that any other specific damage was done at the Luce plant or in its general area, or that any person other than claimant was injured. The window referred to in evidence was the only one blown out of the Luce building or any other building insofar as the record discloses. There is a complete lack of evidence that the winds were unusually severe at any particular time on the day of the accident or that they were so “extraordinary that the history of climatic variations in the locality affords no reasonable warning of their coming”. And, even if the unidentified weather report be accepted as competent evidence, it still fails to establish what the wind velocity was at 12:30 P.M. on November 17, 1958, or that it was unusual or extraordinary for the area in question. We are unwilling to rule, as a matter of law, that the force which cracked and blew in the window was an act of God. The determination of that question was for the commission.

It is the rule that a finding by the Commission that an accident arose out of and in the course of the employment is conclusive, when supported by any substantial competent evidence. Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169, 52 S.W.2d 1019; Thurber v. Allied Motors Co., 235 Mo.App. 1191, 150 S.W.2d 1109. As the court said in Pearce v. Modern Sand & Gravel Co., 231 Mo.App. 823, 99 S.W.2d 850, “It is well-settled law that the finding(s) of the Workmen’s Compensation Commission that the accident arose out of and in the course of employment is a finding of fact, which is conclusive on the circuit court and on this court, as would be the verdict of the jury if supported by competent and substantial testimony.” In accordance with these principles we necessarily rule that the same evidence we have held sufficient to support a finding by the Commission that there was no act of God likewise is sufficient to support the specific finding of the Commission that the accident arose out of claimant’s employment.

In view of our ruling above, any discussion of whether claimant would have been exposed to a greater risk of harm from an act of God than that to which the public generally was exposed has become academic and is unnecessary.

It is our conclusion that the decisions and final award of the Commission are adequately supported by competent and substantial evidence upon the whole record, are not contrary to the overwhelming weight of the evidence and rest upon a sound interpretation and proper application of the law. The judgment of the circuit court affirming the award should be affirmed.

It is so ordered.

All concur, including HIGGINS, Special Judge.

SPERRY, C., not participating.