author: RENFRO, Justice.

text:
    Carmen E. DECKER, Guardian of Estates of Kathryn Mae Mollohan et al., Minors, Appellant, v. Wayne WIGGINS, District Clerk, et al., Appellees.
    No. 16861.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 27, 1967.

      Nelson, Montgomery & Robertson, and David Tate, Wichita Falls, for appellant.
    Peery, Wilson & Jameson, Wichita Falls, for appellee Wayne Wiggins in trial court.
    Jones, Fillmore, Robinson & Lambert, Wichita Falls, for appellee North Texas Federal Savings and Loan Ass’n in trial court.
    Humphrey, Gibson & Darden, Wichita Falls, for appellee Wichita Falls Savings Ass’n in trial court.
   OPINION

RENFRO, Justice.

This case was presented to the trial court on an agreed statement of. facts.

On June 14, 1965, Kathryn Mae Mollo-han and Debra Lynne Mollohan, minors, acting by and through their grandmother, Mrs. Carmen E. Decker, as next friend, recovered a judgment for personal injuries and for the death of their mother.

Shortly after judgment the District Clerk, Wayne Wiggins, received a total of $8,516 for the benefit of Debra Lynne Mollohan and $10,948.68 for the benefit of Kathryn Mae Mollohan.

On June 23, 1965, the District Clerk, acting under the direction of the court, deposited the funds in two savings and loan associations.

Thereafter, on October 31, 1966, Mrs. Carmen E. Decker was duly appointed guardian of the estates of the two above named minors in Cause No. 3046 in the County Court of Wichita County, Texas. She has also qualified as guardian of the estates of the two minors in Logan County, Colorado.

After qualifying as guardian, Mrs. Decker made demand on the District Clerk and the two savings associations for delivery of the money belonging to her wards.

The only reason the defendants refused to deliver such funds was that they had not been so ordered by the District Court.

The Court refused to order the funds delivered to the guardian; hence this appeal.

The Court acted under authority of Article 1994, Vernon’s Ann.Tex.Civ.St, in ordering the money paid into court under the judgment obtained by the next friend to be invested in the savings associations.

The pertinent sections of said Article read as follows:

“Minors, lunatics, idiots or non compos mentis persons who have no legal guardian may sue and be represented by ‘next friend’ under the following rules: 1. In such cases when a judgment is recovered for money or other personal property the value of which does not exceed One Thousand, Five Hundred Dollars ($1,500), the court may by order entered of record, authorize such next friend or other person to take charge of such money or other property for the use and benefit of the plaintiff when he has executed a proper bond in a sum at least double the value of the property, payable to the county judge, conditioned that he will pay said money with lawful interest thereon or deliver said property and its increase to the person entitled to receive the same when ordered by the court to do so, and that he will use such money or property for the benefit of the owner under the direction of the court.
“2. The judge of the court in which the judgment is rendered upon an application and hearing, in term time or vacation, may provide by decree for an investment of the funds accruing under such judgment. Such decree, if made in vacation, shall be recorded in the minutes of the succeeding term of the court.
“3. The person who takes such money or property shall receive such compensation as the court may allow and shall make such disposition thereof as the court may order; and he shall return such money or property into court upon the order of the court.”

It is the position of the guardian that, after she qualified as such, she was entitled to possession, control and custody of all the estate of her wards.

Subsection (b) of Section .230, Probate Code, V.A.T.S., provides that “The guardian of the estate of a ward is entitled to the possession and management of all properties belonging to the ward, to collect all debts, rentals, or claims due such ward, to enforce all obligations in his favor, and to bring and defend suits by or against him; but, in the management of the estate, the guardian shall be governed by the provisions of this Code. It is the duty of the guardian of the estate to take care of and manage such estate as a prudent man would manage his own property. He shall account for all rents, profits, and revenues that the estate would have produced by such prudent management.”

Section 231 of the Code provides that “The guardian of both person and estate has all the rights and powers, and shall perform all the duties, of the guardian of the person and of the guardian of the estate.”

It is provided in Section 233 that every personal representative of an estate shall use ordinary diligence to collect all claims and debts due the estate and to recover possession of all property of the estate to which its owners have claim or title.

The County Court has the general jurisdiction of a probate court. “It shall * * * settle accounts of personal representatives, and transact all business appertaining to estates subject to administration or guardianship, including the settlement, partition, and distribution of such estates.” Section 4, Probate Code.

Under the provisions of Section 5, the district court shall have appellate jurisdiction and general control over the county court in all probate matters, and original control and jurisdiction over guardians and wards under such regulations as may be prescribed by law.

In Silber v. Southern National Life Insurance Company, 326 S.W.2d 715 (Tex.Civ.App., 1959, writ ref.), the San Antonio Court of Civil Appeals, speaking through the then Associate Justice Pope, held: “The minors sued through next friend, and this is a correct procedure. Rule 44, Texas Rules of Civil Procedure. In this instance, however, the suit was for recovery of money due on the bonds, and the money was deposited in the registry of the court. A recovery by next friend could only accomplish that much, but the next friend, after such a recovery, still does not become the manager of the funds. Article 1994, Vernon’s Ann.Civ.Tex.Stats., makes provision for limited disposition of funds which are less than five hundred dollars. With respect to funds in excess of that amount, a guardian is required even after recovery by next friend. Travelers Ins. Co. v. Calcote, Tex.Civ.App., 205 S.W.2d 56; Wilson v. Fisher, Tex.Civ.App., 105 S.W.2d 304; Harllee v. State, Tex.Civ.App., 18 S.W.2d 1091; 23 Tex.Jur., Infants, §§ 82, 85; 27 Am.Jur., Infants, § 134. Since the parent, without appointment as guardian of the minor’s estate, could not act as such, defendant corporation was under no duty to pay the parent as claimant on behalf of the children. Nor could the defendant corporation be expected, in the face of the above authorities, to deliver the currency or write a check payable to the children, some of whom cannot even write. Defendant was under no duty to make payment to anybody other than the person qualified in law to act on behalf of the minors’ estates. After suit was filed by next friend, recovery could be had, but the judgment would require that any recovery should be paid into the registry of the court, where defendant had tendered and deposited the money. The money must stay there until the children reach the age of twenty-one, or a legal guardian is appointed to whom the clerk may make payment, or the provisions of Article 1994 are met. Wilson v. Fisher, supra; 43 C.J.S. Infants § 124.”

The law is set out in 30 Tex.Jur.2d, pp. 733-734, § 83, as follows: “Though judgment has been rendered in his favor and collected, a minor is not entitled to receive the proceeds. If it should exceed $1500 the funds derived from its collection should be deposited with the clerk of the court to be paid over to the infant’s general guardian, if he should have one, otherwise to be paid into court, there to remain until a guardian is appointed or the infant comes of age.”

A guardian is a statutory officer appointed by the Probate Court to guard the interest of his ward and provide for his education and maintenance. Dallas Trust & Savings Bank v. Pitchford, 208 S.W. 724 (Tex.Civ.App., 1919).

In view of the statutes cited, we believe the Legislature intended for the Probate Court, not the District Court, to supervise the guardian and transact all business pertaining to minors.

It is noteworthy that Article 1994 begins minors, etc., who have “no legal guardian” may sue by next friend. It is silent as to any provision for handling funds or property of the minor after a guardian is appointed.

We hold that the specific statutes pertaining to duties of a guardian prevail, after qualification of a guardian, over Article 1994; that Article 1994 was intended to be and is applicable only in those instances where the minor has no duly qualified guardian.

The judgment is reversed and remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Bernard Lason WOLFSKILL, Appellant.
    No. 52620.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Motion for Rehearing or for Transfer to Court En Bane Denied Dec. 11, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, James J. Sauter, Special Asst. Atty Gen., St. Louis, for respondent.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
   STOCKARD, Commissioner.

Defendant was charged under the habitual criminal statute, Section 556.280 (all statutory references are to RSMo 1959, V.A. M.S.), with the offense of unlawfully selling marijuana. After a jury verdict of guilty the trial court sentenced defendant to ten years imprisonment.

Defendant does not challenge the sufficiency of the evidence, and we need not detail the facts which clearly authorized the verdict of the jury.

Out of the presence of the jury the trial court received evidence of defendant’s previous conviction in the United States District Court for the Western District of Missouri for unlawfully selling narcotic drugs. Defendant now contends on this appeal that “there was not sufficient admissible evidence to establish the prior conviction and subsequent imprisonment” because the exhibits received in evidence were not “properly certified and authenticated.” He further asserts that for this reason the court erred in not submitting the issue of the punishment to the jury.

Exhibit 5 consisted of a reproduced copy of what is labeled “Judgment and Commitment” of the United States District Court for the Western District of Missouri wherein Bernard Larson Wolfskill is shown to have pleaded guilty to four counts of an information in which he was charged with unlawfully selling narcotic drugs, and that upon his plea of guilty he was sentenced to the custody of the United States Attorney General for a term of three years on each count, the sentences to run concurrently. The document contains the signature of the district judge and the deputy clerk. On an identical copy the name of the district judge and the clerk are typed thereon, and the deputy clerk is shown to have certified the copy to be a “true copy.” Exhibit 6 is identical with the document comprising a part of Exhibit 5 containing the certificate of the deputy clerk except on the back thereon the deputy marshal made a return that he had executed “The within Judgment and Commitment” by delivering Bernard Larson Wolfskill to the “U. S. Public Health Service Hospital at Fort Worth, Texas, the institution designated by the Attorney General, with a certified copy of the within Judgment and Commitment.” Attached to this document are two photographs of a person not named, but showing a number and the words, “Federal Correctional Institution, Texarkana, Texas” and the date “9 28 54.” There is no contention that these are not photographs of defendant. Attached to and a part of each exhibit is a certificate of General Services Administration, in which it is stated that “the annexed copy (or each of the annexed copies) is a true copy of a record in the legal custody of the Administrator of General Services.” Each certificate is signed by the “Chief, Reference Service Branch,” and there is then a certification by the “Regional Administrator” that the person who signed as “Chief, Reference Service Branch” was in fact the person holding that position, and that “to his certification as such full faith and credit are and ought to be given.”

This was the only evidence from which the circuit court made the necessary findings for the application of Section 556.280, known as the habitual criminal act.

The habitual criminal statutes do not prescribe how proof of a former conviction shall be made. State v. Baugh, Mo., 323 S.W.2d 685, 690. Although the original record, “plus evidence identifying the accused as the convict,” is the best evidence, State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077, 1081, it is not always possible to produce the original record in court, and in that event proof of the fact of a prior conviction and sentence must conform to the requirements for the proof of any other fact. State v. Young, Mo., 366 S.W.2d 386, 388.

Section 1738, 28 U.S.C.A., provides that certain documents which have been authenticated as therein set out shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of the state from which they are taken. Without determining whether this statute applies to a document of a federal court within this state, See 20 Am.Jur., Evidence, § 1017, and without detailing the deficiencies, it is sufficient to say that Exhibits 5 and 6 do not meet the authentication requirements of this federal statute. However, the federal statute does not prescribe the only basis for the admission in evidence of documents, and a state may by statute provide that in its own courts documents shall be admissible as evidence when attested or authenticated in a prescribed method which may be less formal than that required by the federal law, if such method does not exclude documents authenticated as prescribed by the federal acts. State v. Young, supra. Missouri has done this, and we shall now consider those statutory provisions.

Section 490.130 provides that the records and judicial proceedings of any court of the United States, or of any state “shall have such faith and credit given to them in this state as they would have at the place whence the said records come” when they are (1) “attested by the clerk thereof, with the seal of the court annexed, if there be a seal,” and (2) “certified by the judge, chief justice or presiding magistrate of the court to be attested in due form.” There then follows a less exacting provision pertaining to the admission in evidence of copies from the record of proceedings of any court of record of this state. The copy of the judgment and commitment constituting a part of Exhibit 5 is attested by the clerk of the court as a true copy. The reproducing process does not show the impression of a seal, if one appeared on the original copy. However, defendant does not challenge the admission of the record on the basis that there was in fact no seal. There is no certificate by the judge of the court that the document was attested by the clerk “in due form.”

In McGregor v. Hampton, 70 Mo.App. 98, this precise issue was before the Kansas City Court of Appeals in 1897. There a judgment of a federal court in this state was offered in evidence but was refused because although it was attested by the clerk it was not certified by the judge. After quoting what is now Section 490.130 pertaining to the admission in evidence of the records and judicial proceedings of “any court of the United States, or of any state,” it was held that the statute was not intended to apply to the federal courts of the state in which the record of such court is offered. The reason for the ruling was stated as follows : “The language, ‘shall have such faith and credit given to them in this state as they would have at the place whence the said records come,’ plainly implies that the records have come from some other state of the United States. To make it apply to the federal courts of this state, in view of what the certificate of the judge must contain, would be unreasonable. The judge must certify, under this statute, that the clerk’s certificate is in due form. It certainly was not intended that the judge of any other court should certify to a judge of a circuit court in this state that a clerk’s certificate was in proper form under the laws of this state. It would, of course, be assumed that such judge would be competent to determine that matter for himself.” We are in agreement with the above ruling and the reason advanced therefor. When the records of a federal court in this state are offered in evidence in a court of this state the certificate of the judge of the federal court that the attestation of the clerk is in due form is but a formality, and the absence of that formality is not prejudicial to the defendant when the trial court is able to and does make that determination. In this case the ruling of the trial court that Exhibit 5 be admitted in evidence necessarily included a finding that the attestation of the clerk was in due form.

Exhibit 6 consisted of a copy of the judgment and commitment, attested by the clerk, and a return on the back thereof by the marshal of the court that defendant had been delivered to the place of confinement designated by the attorney general. This was certified to by the keeper of the records to have been a record of “The Bureau of Prisons, Federal Correctional Institution, Texarkana, Texas.” Exhibit 6, pertaining to defendant’s confinement, was a record “not appertaining to a court.” It was properly attested by the keeper of the records, and was properly admissible in evidence pursuant to Section 490.220. See State v. Collins, Mo., 394 S.W.2d 368. The confinement at a United States Public Health Service Hospital, when designated as the place of confinement by the attorney general of the United States is sufficient under Section 556.280. State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314.

Defendant makes no specific contention that Exhibits 5 and 6 show his middle name to be “Larson" while the name under which he was charged was Bernard La-son Wolfskill. There was sufficient other evidence, particularly the first and last names and the photographs, to authorize a finding by the trial court that the records of the previous conviction and confinement pertained to defendant. See State v. Witt, Mo., 371 S.W.2d 215, 220, concerning the effect of a variance in middle names.

We conclude that Exhibits 5 and 6 were properly admitted in evidence, and that from them the trial court could and did find the essential facts for the application of Section 556.280.

Defendant’s second point is that the trial court erred in refusing to instruct the jury that the uncorroborated testimony of an accomplice should be considered with great caution because State’s witness Maurice Danny Herron was an accomplice.

The evidence established that Herron had' been a narcotics user, and that he was what is known as an “informer.” The evidence-also established that while cooperating with and using marked money furnished to him by the police, Herron purchased marijuana from the defendant. Defendant asserts that Section 195.020 provides that it is unlawful to possess marijuana, and that taking possession of the marijuana by Herron was a necessary step in the sale thereof, of which defendant was charged, and therefore Her-ron was an accomplice. Defendant requested, but the court refused to give, an instruction to the effect that while the testimony of an accomplice is admissible, unless it is corroborated by some other witness not implicated in the crime it should be received and considered with great caution.

We should first mention that Her-ron’s testimony was corroborated in most respects. The officers did not see the actual transfer of the marijuana from defendant to Herron, but the circumstances to which they testified corroborated Herron’s testimony. However, for the purposes of determining who is an accomplice for the purpose of affecting the right of a defendant upon request to have the jury instructed concerning the credibility of such a witness, the general rule is that “In prosecutions for the sale of articles in violation of statute, the purchaser is not an accomplice of the seller, even though he made the purchase for the special purpose of securing the conviction of the seller.” 23 C.J.S. Criminal Law § 798(16). It has specifically been held that “in prosecutions under state statutes for unlawful possession and sale of narcotics, * * * a purchaser from accused is not an accomplice, particularly where the purchase of narcotics is made a separate offense by appropriate statutory provision.” 23 C.J.S. Criminal Law § 798(20). See also People v. Candelario, 126 Cal.App.2d 408, 272 P.2d 62; Gonzales v. State, 108 Tex.Cr.R. 253, 299 S.W. 901; Lett v. United States, 10 Cir., 15 F.2d 690; State v. Mangrella, 86 N.J.Super. 404, 207 A.2d 175; Johnson v. State, 36 Ala.App. 634, 61 So.2d 867; State v. Ballesteros, 100 Ariz. 262, 413 P.2d 739. For a case involving the illegal sale of liquor, see State v. Wright, 152 Mo.App. 510, 133 S.W. 664. Also see State v. Lee, 228 Mo. 480, 128 S.W. 987 (overruled by State v. Wade, 267 Mo. 249, 183 S.W. 598, on issue other than that now being considered), where the police officers arranged for a person to gamble at defendant’s place with marked money to obtain evidence that defendant was operating a gambling table or device. It was held that ■“there was no error on the part of the court in refusing to instruct that he [the person who gambled with the marked money] was an accomplice.” We conclude that the court did not err in refusing the instruction requested by defendant.

In defendant’s third and last point he asserts that the trial court erred in refusing his requested instruction as follows:

“If upon a consideration of all the evidence, you conclude that any witness has sworn willfully falsely as to any material matter involved in the trial, you may reject or treat as untrue the whole or any part of such witness’ testimony.”

Defendant asserts that witness Herron’s testimony, upon which the finding of guilt depended, “was greatly suspect” because he had previously been convicted, he was an informer for¡the federal narcotics bureau, and a federal charge for an unlawful sale of morphine was pending against him. Defendant also points out that Herron testified that he would “do what is necessary,” including cheating but not committing perjury, to avoid going to the penitentiary, that he had used marijuana for 18 to 20 years and had been a “hard' drug” addict since 1956, and that he last used narcotics only three months before trial. Defendant does not set forth any testimony of Herron which was obviously untrue, or any testimony by him which was in conflict with that of other witnesses.

The requested instruction is a form of a cautionary instruction on the credibility of witnesses. It is usually given as a part of a general instruction on credibility, and whether any instruction on credibility of witnesses should be given is largely within the discretion of the trial court. State v. Swisher, 364 Mo. 157, 260 S.W.2d 6; State v. Lord, Mo., 286 S.W.2d 737. However, it is improper to give such an instruction where there is no evidence at all upon which to base it. State v. Abbott, Mo., 245 S.W.2d 876, 881; Annotations, 90 A.L.R. 74; 4 A.L.R.2d 1077. Such discrepancies as there were in the evidence were of minor significance and not pertaining to the principal issue. We doubt that we could rule that it would have been an abuse of discretion on the part of the trial court to have given the instruction, see State v. Butler, Mo.App., 309 S.W.2d 155, but for the same reason we cannot rule on this appeal that it was an abuse of discretion for the trial court to refuse the requested instruction, certainly when it was limited to the “falsus in uno, falsus in omnibus” clause only.

We have examined those parts of the record required under Supreme Court Rule 28.-02, V.A.M.R. and find no error.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: HOLMAN, Judge.

text:
    Orville HANDSHY, Appellant, v. NOLTE PETROLEUM COMPANY, a Corporation, Respondent.
    No. 52107.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 11, 1967.

      William P. Byrne, Whalen, O’Connor & Byrne, St. Louis, for appellant.
    Heege & Heege, George F. Heege, III, Clayton, for respondent.
   HOLMAN, Judge.

Action for damages in which plaintiff sought to recover $45,000 for personal injuries. A trial resulted in a verdict for defendant. Plaintiff has appealed.

In a previous trial plaintiff recovered a judgment. Upon appeal that judgment was reversed and the case was remanded for a new trial because of error in an instruction. Handshy v. Nolte Petroleum Co., Mo.App., 387 S.W.2d 161.

O.n December 5, 1959, plaintiff was engaged in the moving business and maintained an office in a small room in the back part of his residence. On that morning he was in the office shortly after 8 o’clock with an employee, Elvard Izeman. Plaintiff’s wife was not at home and his four children were asleep upstairs. At about that time defendant’s truck arrived to make a delivery of fuel oil. The oil tank was located in the basement with an intake pipe close to the outside door of plaintiff’s office. Defendant’s regular employee, Eugene Wood, placed the nozzle in the pipe and started the oil flow. He left the nozzle in charge of Clifford Black while he went to the truck and “revved up” the motor. Black was a new employee and had not received any instruction as to how to shut off the hose. The oil started overflowing and Black could not stop it. Before the hose was shut off about five gallons of oil overflowed onto plaintiff’s patio, and there was evidence that some ran under the door and onto the floor of the office.

Plaintiff who, according to Wood, “appeared mad,” came out and either he or Wood swept the oil into a drain. At about that time Wood suggested that there might be some spillage in the basement. Plaintiff had an automatic gas water heater in the basement and was apparently afraid that oil may have spilled and might be ignited by the gas water heater. He immediately went through his office and kitchen to the doorway leading to the basement. As he started down the steps his feet “went out from under him” and he fell down the remaining steps to the basement floor and was injured. A short time later he examined his shoes and found that the soles were “full of oil.”

It was shown on cross-examination of plaintiff that he had sustained injuries in three accidents occurring subsequent to the one in question.

Mr. Wood testified that the oil being delivered would not ignite until heated to a temperature of 154° F.; that the mat outside the door was only one-third saturated with oil; that he followed plaintiff into the house and wiped his feet on the dry portion of the mat; that he did not see plaintiff wipe his feet.

Plaintiff’s case was submitted upon a required finding of negligence in that “the defendant failed to properly instruct its employee how to shut off the hose.” Defendant contended that plaintiff was guilty of contributory negligence and the submission thereof required a finding that plaintiff either “walked through the spilled oil, or failed to wipe his shoes off on the door mat * *

The first point briefed by plaintiff is that the court erred in overruling his objection to a question asked the jury panel by defendant’s counsel on voir dire examination. The question was as follows: “Mr. Heege: If the law and the evidence shows you Mr. Handshy is not entitled to recover, are there any of you who couldn’t give a verdict for the defendant?” Plaintiff’s attorney made an objection which was overruled and then the following statement was made: “Mr. Heege: I take it by your silence you could do this.”

Plaintiff contends that the ruling was erroneous because it permitted interrogation by defendant’s attorney which sought to commit the jurors to a verdict prior to hearing the evidence. It is undoubtedly an established rule in this state that an attorney on voir dire examination may not cause the veniremen to pledge or speculate as to their action in certain contingencies which may later occur during the trial.

In State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046, 1048, we held it was reversible error to permit the prosecuting attorney to ask the following question: “If you were accepted as a juror in this case, if you believe and found from the evidence beyond a reasonable doubt that the defendant was guilty, if you believe from that evidence that the death penalty was proper penalty to follow a finding of guilty, would you vote for it?” It was held to be reversible error in State v. Katz Drug Co., Mo.Sup., 352 S.W.2d 678, 684, to permit the following question on voir dire examination : “Now, if I prove to your satisfaction and beyond a reasonable doubt that February 22, 1959, was a Sunday, and that the Katz Drug Company at their 8th and Washington store sold goods, wares and merchandise which were not medicines or drugs and not items of immediate necessity, and if the Court instructs you that that is a violation of the law, will you convict?” In ruling the contention the court stated that this “was an improper attempt to commit jurors before they had heard evidence, instructions of the court or argument of counsel.” In Smith v. Nickels, Mo.App., 390 S.W.2d 578, the court affirmed the action of the trial court in granting a new trial because of error in permitting counsel to ask the following question: “Mr. Cleary: * * * would any of you have any hesitancy in holding my client blameless, finding in his favor, if you felt that he was not responsible for this accident?”

In our consideration of the question presented we should bear in mind the following rules: “ ‘The extent to which parties should be allowed to go in examining jurors as to their qualifications cannot well be governed by any fixed rules. The examination is conducted under the supervision and direction of the trial court, and the nature and extent of the examination and what questions may or may not be answered must necessarily be left largely to the sound discretion of the court, the exercise of which will not be interfered with unless clearly abused.’ ” State v. Hoffman, 344 Mo. 94, 125 S.W.2d 55, 57.

We think the question in the case at bar may readily be distinguished from the question in the Pinkston, Katz, and Smith cases. This for the reason that the question in those cases definitely sought to commit the jurors to a certain verdict in the event of certain contingencies while the one before us did not. The question before us concluded with “ * * * are there any of you who couldn’t give a verdict for defendant.” If the question had contained the word “wouldn’t” it would have been a definite commitment and would likely have been reversible error. However, there is a decided difference between those words. Here the prospective jurors, by their silence, indicated that they could render a verdict for defendant if the law and evidence showed that plaintiff was not entitled to recover. But that was not to say that they would render such a verdict. Apparently defendant, in asking the question, was endeavoring to ascertain whether there were any prospective jurors who had views which would preclude them from returning a defendant’s verdict, in a case of this nature, in any event.

We do not approve of the practice of asking veniremen questions such as the one before us because it does, in a sense, involve speculation as to the future action of the jurors in the event of certain contingencies. However, in this case we are unable to conclude that any prejudice to plaintiff resulted therefrom and we accordingly rule that the trial court did not abuse its discretion in overruling the objection.

Plaintiff’s next point is that the court erred in overruling an objection to the following portion of the argument of defendant’s counsel: “ * * * You have seen this man’s temper up, seen him smirking over here, seen him looking around with his shifty eyes * * *. Mr. Byrne: I think that is ridiculous. I am going to object to that. I think that is improper argument. The Court: Overruled.”

The statement complained of was made while counsel was arguing that plaintiff was guilty of contributory negligence. It was made in connection with the argument that plaintiff was careless because he was “mad” over the fact that the oil had been spilled. The entire statement appears to refer to plaintiff’s conduct in the courtroom during the trial. Plaintiff says that the statement was calculated to prejudice the jury against him and that it had that result.

We have often said that argument should not be outside the evidence nor calculated to arouse a feeling of hostility or resentment against the opposite party. Also, no derogatory or irrelevant reference to the appearance of a party should be permitted. See cases cited in Hancock v. Crouch, Mo.App., 267 S.W.2d 36. There is no evidence in the transcript to prove that plaintiff conducted himself in the manner stated. However, the fact that the trial judge overruled the objection may be an indication that he had observed conduct on the part of plaintiff of the type mentioned in the argument. In any event, we think it was improper to permit a reference to plaintiff as having “shifty eyes.” That expression has an unsavory connotation and could be construed as indicating that plaintiff had an unstable, furtive appearance.

However, it does not follow as a matter of course that there should he a reversal of the judgment. “The trial judge has a large discretion ‘in permitting or restraining the argument, and his rulings will generally be deferred to on appeal.’ Goyette v. St. Louis-San Francisco R. Co. (Mo.Sup.) 37 S.W.(2d) 552, 556. On the motion for a new trial, the trial judge determined that the argument complained of did not improperly influence the jury. The trial judge hears the testimony and the arguments, and in view of his opportunity to weigh and determine the likely or possible effect of the alleged prejudicial argument, we are inclined to defer to his rulings unless it appears that the protested arguments so patently pass legitimate bounds as to be manifestly prejudicial and the ruling of the trial court thereon a clear abuse of discretion.” Cordray v. City of Brookfield, 334 Mo. 249, 88 S.W.2d 161, 165. In the instant case the point under consideration was called to the attention of the trial judge in the motion for new trial and the motion was overruled. Since the statement complained of did not “patently pass legitimate bounds,” and we see nothing in the transcript to indicate prejudice, we defer to the opinion of the trial judge and accordingly rule that the argument under consideration was not such as would require the granting of a new trial.

Two other contentions of error relating to defendant’s argument are briefed by plaintiff. One concerns an argument in regard to the number of damage suits for personal injuries that had been filed by plaintiff. However, plaintiff did not make any objection to that argument and we accordingly rule that the alleged error is not preserved for appellate review. O’Brien v. City of St. Louis, Mo.Sup., 355 S.W.2d 904 [5]. The other contention relates to an argument which plaintiff says “was improper and prejudicial in that it told the jury that the plaintiff and his attorney had conspired to commit perjury in order to defeat the possible claim of contributory negligence.” The objection made to that argument, however, was as follows: “Mr. Byrne: That is improper argument, Your Honor. That presumes something not in evidence, that there was a slick linoleum. The Court: Well, I will overrule the objection.” It will be noted that the ground of objection stated in the trial court is entirely different from the objection presented here. As we view this situation, there is nothing before us for review. The ground of objection actually stated in the trial court has not been asserted on appeal and hence is considered abandoned. Marshall v. City of Gladstone, Mo.Sup., 380 S.W.2d 312. And the ground of objection presented here, not having been asserted in the trial court, may not be considered by this court. “Since an appellate court is not a forum in which to make a new case, or in which new points will be considered, but is merely a court of review to determine whether or not the rulings of the trial court, as there presented, were correct, a party seeking the correction of error must stand or fall on the case which was made in the trial court, and thus it follows that only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal.” 4 C.J.S. Appeal & Error § 253, p. 770. This point is therefore ruled adversely to plaintiff.

The judgment is affirmed.

FINCH, P. J., and EAGER, J., concur.

DONNELLY, J., not sitting.


author: DONNELLY, Judge.

text:
    Roy AUSTIN, Appellant, v. WESTERN AUTO SUPPLY CO., a Corporation, Respondent.
    No. 52535.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 11, 1967.
    E. E. Thompson, Thomas A. Sweeny, James N. Cameron, Kansas City, for plaintiff-appellant, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    James W. Benjamin, Rogers, Field & Gentry, Kansas City, for defendant-respondent.
   DONNELLY, Judge.

In this jury-tried action, plaintiff sought damages in the amount of $175,000 for bodily injuries suffered October 2, 1964, in Jackson County, Missouri. The jury returned a verdict for defendant. Plaintiff appealed.

The action is for breach of an implied warranty of suitability and fitness. The applicable rule of law is that “ * * * where the seller, be he manufacturer or dealer, undertakes to supply an article for a particular purpose, knowing that the buyer trusts to his judgment that the article is suitable for that purpose, an implied warranty arises that the article is suitable for such purpose. * * * ” Hunter v. Waterloo Gasoline Engine Co., Mo.Sup., 260 S.W. 970, 973; 10 Mo.Law Review 147, Implied Warranties in Missouri. The seller is required to respond in damages for breach of such warranty. London Guarantee & Accident Co. v. Strait Scale Co., 322 Mo. 502, 15 S.W.2d 766.

“In determining whether or not a sub-missible case was made for the jury against * * * [defendant], we must consider plaintiff’s evidence from a viewpoint most favorable to plaintiff and give plaintiff ‘the benefit of every reasonable favorable inference which the evidence tends to support.’ ” Gibson v. Newhouse, Mo.Sup., 402 S.W.2d 324, 327.

In September, 1964, plaintiff entered defendant’s store looking for an automobile bumper jack. He was approached by salesman A1 Turner who asked if he could help plaintiff. Plaintiff said, “Yes, sir; I need a jack for a 1957 Buick.” Turner obtained a chart from the wall of the display and stated to plaintiff that Model A-5054 “should take care of * * * [plaintiff’s] needs.” Plaintiff said, “All right; I will take this model.” Turner went to the back of the store, returned with a “Wizard Bumper Jack, Model A-5054,” and plaintiff paid for it. Plaintiff did not know “whether or not this A-5054 jack would work on a 1957 Buick.” He was “going by the chart,” and “by what the salesman told * * * [him].”

Plaintiff left the store, went to his car, took the jack out of its box, and placed it in the trunk of the car. He did not use the jack until the morning of October 2, 1964, at the home of Stanley Chambers, where he got into the car, and it “wouldn’t start.” The car was parked on a concrete, level driveway. Plaintiff believed the trouble was with the “solenoid on the accelerator linkage that actuates the starter.” He and Chambers blocked the rear wheels, the car was “already in park,” and he “put the emergency brake on.” Plaintiff then took the jack out of the trunk, placed it under the left front part of the front bumper and jacked the car approximately ten inches off the ground with the left front wheel “barely touching the ground.” Plaintiff testified: “I then went around to just behind the left front wheel, and I guess I got to maybe my chest up under the car, and I reached up to the general area of where the starter would be, and I don’t recall whether I touched it or not, but I heard a clicking sound, and I turned my head toward the general area of the jack, and then I heard some noises and, bang, it [the frame of the car] came down on my head.” Plaintiff was injured. This evidence is sufficient to submit to the jury the question of defendant’s liability for breach of an implied warranty of suitability and fitness for the intended purpose. Hunter v. Waterloo Gasoline Engine Co., supra.

The trial court, at plaintiff’s request, gave Instruction No. 2 (MAI 25.03) which directed a verdict for plaintiff, and reads as follows:

“Your verdict must be for plaintiff if you believe:
“First, defendant sold the jack in question to plaintiff, and
“Second, the defendant knew or should have known by using ordinary care of the use for which plaintiff purchased the jack in question, and
“Third, plaintiff reasonably relied upon defendant’s judgment as to the fitness of the jack for such use, and
“Fourth, the jack was not fit for such use, and
“Fifth, as a direct result plaintiff was damaged.”

Defendant chose to converse the ■“Fourth” and “Fifth” submissions of Instruction No. 2 with its Instruction No. 5, which reads as follows:

“Your verdict must be for defendant if you do not believe:
“First, that the jack sold by defendant was unfit for use on a 1957 Buick; or
“Second, that plaintiff was injured as a direct result of the condiiton of the jack.”

Plaintiff contends the trial court committed prejudicial error in giving Instruction No. 5. Although MAI prescribes no approved form of converse instruction in implied warranty cases, a converse instruction prepared under the “First Method” of conversing must use “substantially the same language used in the verdict directing instruction.” MAI 29.01. Instruction No. 5, which undertakes to converse the elements of unfitness for the intended use and causation, does not do so. Instead it injects a new and foreign element, namely the “condition” of the jack. The condition of the jack, as such, was not in issue. Plaintiff was not restricted to recovery on the basis that the jack was not in proper condition, or that it was defective, or improperly designed. The gravamen of plaintiff’s action was breach of implied warranty in supplying a jack not suitable for the intended use (lifting and supporting a 1957 Buick automobile). The jack may have been altogether fit and proper for use in lifting other automobiles but unfit and improper for use in lifting this particular kind of automobile. Under Instruction No. 5, the jury, believing that the jack was in good condition, i. e., not defective and not improperly designed, could have and may have returned a verdict for defendant notwithstanding the jury at the same time may have believed that the dealer sold the plaintiff the wrong kind of a jack for use on a 1957 Buick. This misdirection, which permitted the jury to determine the case on the basis of a false issue, constituted reversible and prejudicial error.

Other points briefed relate to the admission and exclusion of evidence and argument of counsel. All involve matters largely within the discretion of the trial court. Baker v. Kansas City Public Service Co., 353 Mo. 625, 183 S.W.2d 873, 875 [1-3]; Superior Ice & Coal Co. v. Belger Cartage Service, Inc., Mo.Sup., 337 S.W.2d 897, 906 [8]; Eickmann v. St. Louis Public Service Co., Mo.Sup., 323 S.W.2d 802, 810 [15-17]. We cannot assume they will recur upon another trial in similar posture and circumstances. They need not be discussed on this appeal.

The case is reversed and remanded for a new trial.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    Victor E. SCHULTZ, Appellant, v. Julia L. CURSON, Respondent.
    No. 52138.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 11, 1967.

      Tom R. R. Ely, St. Louis, for appellant.
    McElwee & McElwee, Claude W. Mc-Elwee, Claude W. McElwee, Jr., St. Louis, for respondent.
   PRITCHARD, Commissioner.

Victor E. Schultz sued Julia L. Curson by Count I of his second amended petition to set aside deeds to a tract of land upon which the Hill Top Trailer Court is located in south St. Louis County (on U.S. Highway 66, in Sappington, and a residential property, Lot 12 of Terrace Gardens Plat No. 2, in St. Louis County). For grounds as to the prayed relief under Count I, Victor alleged basically that the deeds were without consideration; it was not his intention to convey to Julia or divest himself of his one-half interest; and that the conveyances were made with the understanding or agreement that Julia would reconvey to him upon request after the claims and interest of his then wife, Pauline Schultz, were settled. As to the Hill Top Trailer Court property, Victor alleged Julia’s intended fraud to refuse to reconvey to him at the time the quitclaim deed was executed. As to the Terrace Gardens property, it was alleged that Julia failed and refused to carry out their agreement to reconvey upon his request.

As to Count III, Victor sought dissolution of a partnership alleged to exist between him and Julia by which they accumulated real estate and the Hill Top Trailer business, for approximately 30 years, held as tenants in common, which partnership continued as before after the deeds to said real estate were made and delivered to Julia.

Julia answered Count I alleging that any agreements to reconvey (which she denied existed) were not in writing and were violative of the Statute of Frauds, § 432.010, RSMo 1959, V.A.M.S., and void. As to Count III,-, Julia answered that the alleged partnership is and was founded upon an illegal consideration, is null and void as against public policy and is the result of the unlawful and immoral relations between Victor and herself. She prayed dismissal of both counts. By counterclaim Julia sought an injunction against Victor from interfering with her real estate and trailer court business, accepting rents thereon, and for an accounting of rents collected by him from tenants of the trailer park business and a judgment there-for.

The judgment of the trial court was for Julia on Counts I and III, upon which Victor elected to stand, on these paraphrased findings of fact: That the quitclaim deed to the Hill Top Trailer property by Victor and his then wife, Pauline, conveyed all their right, title and interest, and was freely and voluntarily executed; that there was no agreement, memorandum or note in writing whereby Julia agreed to hold title for the use and benefit of Victor, or where she agreed to reconvey a one-half interest in the same to him; that Julia borrowed $42,000 secured by a first deed of trust on said property and paid all amounts which she and Victor were jointly indebted: $14,536.25 to Allen and Frieda Krueger as the unpaid balance on their note, $1,671.12 to Skelly Oil Company (a judgment), $9,500 to Claude W. McElwee and Oscar Moberg (attorney fees allowed in the partition suit), $7,362.41 to D. Jeff Lance (receiver fees in the partition suit), and $59.90 court costs, and the debt, $2,513.77, to Pauline Schultz and Fred M. Gossom, her attorney, due from Victor; that the quitclaim deed to the Terrace Gardens residential property was made by Victor for the purpose of placing that real estate beyond the reach of his (judgment) creditor, Fred M. Joseph, and that there was no agreement memorandum or note in writing whereby Julia agreed to hold the title to the residential property for Victor’s use or benefit or where she agreed to reconvey a one-half interest therein to him. A further finding was made that neither tract was held by Victor and Julia as partners when the quitclaim deeds thereto were executed.

As grounds for the decision, the trial court assigned: That the alleged parol contract whereby Julia is alleged to have agreed to reconvey a half interest in both tracts was within said § 432.010, RSMo 1959, V.A.M.S., and that the mere taking of the alleged verbal agreement to recon-vey, and the bare alleged violation thereof by Julia, would not amount to fraud and would not take the alleged agreements from within said statute; that under the law of contribution the payment of the joint indebtedness by Julia, she and Victor bene-fitted equally, no part being paid by him, and he became indebted to her for one half of each of said amounts borrowed by her from the Gravois Bank, which constituted part of a valuable consideration for the quitclaim deed to the Hill Top Trailer property; and that the payment by Julia of Victor’s debt to Pauline Schultz and Fred M. Gossom, her attorney, also constituted part of a valuable consideration for the Hill Top Trailer property deed; that the tenancy in common of both properties did not of itself establish a partner ship between Victor and Julia whether they did or did not share any profits made by the use of said real estate because of the provisions of Subsections (2) and (3) of Section 358.070, RSMo 1959, V.A.M.S.; that Victor failed to prove by clear, cogent, convincing and credible evidence that he and Julia were partners or that the real estate was partnership property owned by them as partners. The title in the real estate was confirmed in Julia, and Victor was perpetually enjoined and restrained from interfering with the use and occupancy of the real estate by Julia.

The evidence is that Victor and Julia met in 1931 or 1932; Julia testified it was in 1933. Victor was then married to Edith Crenshaw Schultz, who died about 1951, never having been divorced from her. Julia was divorced from her husband, Arthur L. Curson, on November 18, 1932. Victor and Julia were never married. In 1933, she borrowed $50, and he had $35, and they went to California where he worked in a cleaning and pressing establishment. Victor was then about 30 years of age and Julia was about 7 years older. They stayed in California three or four months, then using money from pawning his watch and her jewelry. They returned to St. Louis and rented rooms on Lindell and Delmar Avenues as husband and wife.

Victor testified that on the return trip he and Julia were talking about their future and she said, “Well, we’ll put our money into this venture and we’ll share it and share it alike, and if we have good luck and success, we’ll go forward and we’ll share it, and if we get to a point where we want to agree or disagree, we’ll sell what we have and split the money and share it. In other words, we’ll pool everything that we have.” Julia denied having that conversation, but in any event in 1935 or 1936 they purchased a house at 6456 Wanda Avenue in St. Louis, taking title as “Victor E. Schultz and Julia L. Schultz, his wife.” A one-seventh interest in this house had been inherited by Julia from her mother. She and Victor lived in the Wanda Avenue property for about five years, paying on the note which they executed. He was working as a used car salesman. In 1942 Victor and Julia moved to Chicago where he worked for General Motors, and she worked for Jefferson Electric. Prior to the time they moved to Chicago they sold the Wanda Avenue property and purchased a house on Ken-nerly Road in southwest St. Louis County. Title to the Kennerly Road property was taken by them in the same manner as the Wanda Avenue home. They lived in Chicago until 1945, and accumulated from earnings in the Villa Park Trust & Savings Bank to January 6, 1945 the amount of $4,624.29, under the names “Victor E. or Julia L. Schultz.” In 1945 they returned to St. Louis and purchased a four-family flat at 2210-12 South 18th Street which was also conveyed to them jointly as husband and wife. In 1948 they went back to Chicago and purchased in their joint names the unexpired term of a trailer court lease. That property had a Texaco service station, 5 cabins and 25 trailer spaces. Victor ran the service station and sold bottled gas; Julia took care of the cabins and did the cleaning and washing. They had opened another joint bank account in the La Grange State Trust and Savings Bank, into which the gross earnings ($900 to $1200 per month) from the trailer court were deposited, and in which was accumulated $3,508.75 to March 29, 1951, when the lease expired and they again returned to St. Louis. They also had two trucks, an Alma House Trailer and four automobiles which Victor had purchased in his spare time for resale. The Kennerly Road property was sold and from the proceeds, $10,000, they purchased a house at 9848 Hill Top Drive for $25,000. Title was again taken “Victor E. Schultz and Julia L. Schultz, his wife.” Two weeks later they purchased the Hill Top Trailer Court at 9618 Highway 66 from Allen and Frieda Krueger for $50,000. A deed of trust and note were given on this property with payments prescribed at $170 per month. They had about $24,000 from earnings and profits prior to these purchases, and a loan secured by chattel mortgages on the automobiles was also obtained for the real estate down payment.

Victor and Julia operated the Hill Top Trailer Court thereafter and up until 1956 both had the right to write checks on the Hill Top Trailer Court account in which the gross earnings were deposited in the Gravois Bank. After 1956, the account was changed so that Julia’s signature was the only one authorized for withdrawals.

In 1956, after Victor learned that his first wife, Edith Crenshaw Schultz, had died, he married Pauline Wilson. When he told Julia about it, she said she didn’t believe it and told him to get a divorce and come back home. This was the start of the difficulties between Victor and Julia. According to Julia, Victor was not turning over his collections of trailer space rents or accounting to her therefor. On December 20, 1956, Julia filed a partition suit against Victor and asked for the appointment of a receiver (which was done) to take charge of Hill Top Trailer Court. After having lived with Pauline in other trailer courts for about five months, Victor separated from her on February 4, 1957. He first filed suit for divorce against her in Kansas City, but dismissed it and filed another against her in St. Louis County on July 5, 1957.

The receiver had charge of the property twelve to thirteen months, and Victor and Julia had a conversation about the partition suit. According to Victor, Julia said, “We’ll get it out of court and we’ll have to pay our bills off,” and she said, “I’ve got a little money I’ve put away to pay our bills off and you come on back and we’ll just take up where we left off. We’ll share and share alike and pool everything together, the same as we did for years.” Julia’s version was that when Victor moved Pauline moved into the trailer court to live, buying “a great big new trailer” then going off on a honeymoon, she had to protect her interest. Pauline was going to quit her job and help him manage the trailer court. “And where was I going to be? They were going to float me down the river. I was told that. * * * Well, something had to be done. He was collecting all the rents.” Julia further testified that she never had an agreement with Victor about the property, nor did she discuss how much interest he had therein. He didn’t assert any interest until he brought blank quitclaims to her (after the deeds in controversy were signed and delivered).

The deed to the Hill Top residential property, Defendant’s Exhibit A, executed, acknowledged and delivered by Victor E. Schultz and Pauline Schultz, his wife, to Julia L. Curson, also known as Julia L. Schultz, is absolute on its face. So also with the deed to the Hill Top Trailer Court property, Defendant’s Exhibit B. Neither deed contains any restriction or condition. There is no other writing shown by the record of the trial executed by Julia of an agreement whereby she would hold the property for the use and benefit of Victor and whereby she would reconvey a one-half interest to him when things were cleared up. These two deeds are dated February 4,1959, and were filed for record on March 14, 1959. The property covered by Defendant’s Exhibit A, the Hill Top residential property, was sold in 1964, according to Julia, for less than was paid for it, and the excess over the mortgage thereon was used to’ pay taxes. Victor testified that he secured an $827.11 reduction on the taxes (1959 through 1963). That residential property is not involved in the decree. However, Julia testified that he told her he was going to deed the property to her at the time Defendant’s Exhibit A was acknowledged. She testified further that she had no conversation with him about the deed, Defendant’s Exhibit B.

On January 27, 1960, Victor made an unrestricted, unconditional deed (Plaintiff’s Exhibit 18) to Julia of the property, Lot 12 of Terrace Gardens Plat No. 2. He procured the signatures of the trustees (as apparently required by a recorded agreement concerning subdivision restrictions on transfers). Prior to this conveyance Fred M. Joseph had filed suit against Victor for counsel fees. Victor went to attorney Havener and asked that a deed be “fixed up” to transfer his interest in the Terrace Gardens property out of his name. Both he and Julia signed the deed and both acknowledged it before Mr. Havener as Notary Public. Over objection as being in violation of the Statute of Frauds, Victor testified that he had an agreement with Julia wherein she stated, “Well, I’ll sign it back over to you when w« know that we’re in the clear,” and that a day or two later she told him that her lawyer told her the best thing to do was to sign it over to her and they would be-' on the safe side. Julia testified that at the time of the execution of the Terrace Gardens deed, Victor told her he wanted to get everything out of his name. There were no conversations about the deed or property, and she did not state anything or make any promises to him in regard to the property. She said nothing.

Upon this whole record involving conflicting testimony the matter of whether there was any agreement at all could have been ruled adversely to Victor merely upon the trial court’s function to pass upon the credibility of witnesses. Especially is this true when there is considered the highly evasive and equivocal testimony of Victor upon his cross-examination, and the conflicts in some of his testimony with documentary evidence. However, the trial court did not place the denial of Victor’s right to recover solely upon credibility, but basically upon the fact that there was no written agreement by Julia to reconvey to Victor, that any oral agreement was in violation of the Statute of Frauds, and additionally, with respect to the Terrace Gardens property, that Victor did not come into court with clean hands in that he executed that deed to avoid his judgment creditor, Fred M. Joseph. The inquiry then is whether Victor adduced sufficient clear, cogent and convincing proof of facts and circumstances amounting to fraud so as to remove any oral agreement to re-convey from the operation of the statute.

Victor claims that the trial court erred in failing to find that the oral contract to recover the property was not within the Statute of Frauds where he performed his part of the agreement. As to such performance, he says that he “did resume his former relationship prior to the partition suit and worked and managed the trailer court and attended the business as before.” Victor testified that after the quitclaim deeds were delivered before and after his divorce he lived in the Terrace Gardens home with Julia at her request; that he took possession of the Hill Top Trailer Court, appearing there every day opening up in the morning; relieving sewer lines from tree root stoppages; taking care of electrical troubles and reading meters; taking care of road work, tree trimming; hiring extra help when the work was too hard or heavy to do himself; that Julia did nothing other than drive through the park once in awhile; that he collected rents along with Julia; and that these duties were performed up to the time of trial. After Julia refused to reconvey to him she locked him out of the house and refused to let him in the Terrace Gardens home. He went to the trailer court and set up an army-type cot in what used to be the men’s toilet and shower room, where he slept. At the time of trial he got up every morning and swept the laundry room and office. He bought faucets; replaced sewer lines; did electrical work; he had a problem with the City of Crestwood and did wiring; he did road work — hauling rock in a two-wheeled trailer and putting it on roads. He rented trailer spaces, collected the rent and put it in a special account, “Victor Schultz, co-owner and special agent for Julia Curson.” He paid bills out of cash money he had from selling. He replaced a hot water heater with cash, and Julia didn’t approve of that. He paid the back taxes from the money received from the sale of the Hill Top residence, and arranged that penalties therefor be reduced.

Mearl Hill testified she paid Victor rentals in May and June, 1959; and over the past six years had paid it to both Victor and Julia. In a conversation, Julia told Mearl that she too had lived in Hinesdale, Illinois, and “Well, you know, that’s where we got our start in this business.”

Martha B. Cobb paid Victor rent for the month before trial, and testified that she had paid rent to both of them. She talked with Julia in March, 1965, and Julia said, “Well, now, we could have been here and we could have been in Florida and seeing the sunshine instead of this awful snow, and we could have got some manager to take care of the court.”

Portions of Julia’s deposition were read in which she testified that after the receivership Victor was there in the house with her, “But that is all”; that he did attend to some things at the trailer court, “[0]nly when there was work involved somebody else would do the work and I would pay the bill. He would stand over them and tell them what to do”; and “Q. ‘Well, didn’t he have authority, Mr. Schultz, any authority, Mr. Schultz, to also (dash, dash).’ A. ‘He did whatever he wanted to do.’ Q. ‘Didn’t you feel that he had a right to manage it?’ A. ‘No, I didn’t feel he had a right to anything.’ ”

It was brought out by the testimony of A1 Steimel, Chief of Police of the City of Crestwood, that in City Hall proceedings from 1956 to a recent date (concerning maintenance of a nuisance and unsanitary conditions) Victor denied any ownership or control of the Hill Top Trailer Court. He charged the police department with arresting the wrong person. He had counsel at the time and said that he was a friend of the owner and just stayed around the place occasionally. Victor told Katheryn Steimel, court clerk of the City of Crestwood, “I have nothing to do with the place. I’m just a friend. That’s the reason I’m around there.” Victor told Oliver Paske at the trailer court in May and June, 1964, that he was not the manager, did not work there, he was not getting paid, and was just sitting there.

Julia testified that she did not live with Victor as man and wife after his divorce from Pauline. She let him come back, “and that’s all.” She let him come back in the house. In December, 1964, Victor collected the biggest part of the rents and did not account to her for them. On her deposition, Julia testified that Victor just came and took over, being there all the time “walking around, giving orders to people working there.” She did not employ labor, but she paid for it. She operated the Hill Top Trailer Court from 1956, 1957 or 1958 with Victor, but that Victor’s operation of it was not with her permission — she “didn’t want him to.” Victor would also rent spaces to tenants, and collected the money which he would keep. She collected money also and paid the bills.

Although the evidence would support a finding that Victor and Julia were engaged in a joint enterprise wherein their profits and respective wages were invested in real and personal properties, and that they had a partnership (in at least the trailer court property) up until the partition suit was filed or to the time the quitclaim deeds were executed, as above indicated, such evidence would also support a finding that there was no agreement as to reconveyance by Julia to Victor of the properties. The defense that the alleged oral agreement was in violation of the Statute of Frauds, supra, is, however, an affirmative one. Large v. Frick Co., 215 Mo.App. 232, 256 S.W. 90, 92 [11-14]; Hyde v. Henman, Mo.App., 256 S.W. 1088, 1091 [6]; Linneman v. Whitley, Mo.App., 402 S.W.2d 76, 79 [6]. The alleged representations, understanding and agreements, if any, were specifically denied by Julia, and then she pleaded that any of the same, not being in writing, are within the Statute of Frauds and “are null, void and of no legal effect and are unenforceable in this Court.” For the purpose of disposing of the issue on this appeal the alleged oral agreement to reconvey is treated as having been proved. Then, did Victor prove facts which would make the statute inapplicable? There was conflict in the testimony as between Julia and Victor as to whether he entered upon the alleged oral agreement and performed his part thereof by attending the business as before. He testified that he did, but Julia testified that he was there only, and that any work or management done by him was not with her permission. He kept rents collected by him; she used rents collected by her to pay bills. Julia’s position that Victor had no legal rights there is fortified by Victor’s statements that he did not own or manage the trailer court made to the police court officials during the time in controversy. Additionally, there is in evidence as admissions against interest Victor’s answers to propounded interrogatories in Pauline’s divorce suit that he was not then the “owner, operator, proprietor or in any other capacity engaged in any business,” and when asked on deposition in that suit, “Do you own any real estate other than this Hill Top Drive address that you have already made mention?” he answered, “I don’t even know that I own it,” and “My name is on the deed for the trailer park, probably, too.” When further asked, “How long have you been in the trailer business at that particular trailer park ?” he answered, “Well, I don’t know that I’ve been in the business there or not, but I have been working there since 1951.” He further stated that he and Julia conducted the business jointly until January 4, 1957, and at the time of the deposition testified that he was not then associated with the trailer park.

Victor’s cited cases upon performance of an oral promise to convey are of no aid to him. In Easley v. Easley, Mo., 333 S.W.2d 80, the grandson proved convincingly to the trial court and this court thaf' he entered possession, built a house, and performed services to his grandfather pursuant to their oral contract. In Anderson v. Abernathy, Mo., 339 S.W.2d 817, possession had been taken and improvements were made on the property and the evidence was clear and convincing that there existed an oral contract to sell a lot. In Cave v. Wells, 319 Mo. 930, 5 S.W.2d 636, a widow and her daughter orally agreed to a land division. The widow went into exclusive possession and performed her part of the agreement. It was held that failure of performance of the oral agreement by the daughter would work a fraud on the widow and the court decreed a fee simple title in the widow as to her portion.

The contention of Victor that there was no intention upon his part to divest himself of his interest in the real estate is met by the fact that the deeds in question are absolute on their face, with usual words of grant, and Julia’s testimony that he told her he was going to deed the trailer court property to her, and that nothing was said by her concerning either that property or the Terrace Gardens property. It is clear that Victor wanted to get the latter property out of his name to avoid the judgment held by Fred M. Joseph. It was Victor’s acts which caused the execution and acknowledgments of the deeds. There is no question but that the deeds were delivered to and accepted by Julia. It was a question of fact as to whether Victor intended to pass his title and interest absolutely, and it cannot be said here that the evidence established a lack of such intention. Compare Pahler v. Young, Mo., 232 S.W.2d 393, 395, where it was held that a deed recorded with the knowledge of the grantors was indicative of an unconditional delivery and of the grantor’s intention that the instrument was to operate as an absolute conveyance rather than as a mortgage. See the there cited case of Rone v. Ward, 357 Mo. 1010, 212 S.W.2d 404, 407. See also Ratermann v. Striegel, Mo., 273 S.W.2d 304, 306 [1-6]. The relied-upon case of Frey v. Onstott, 357 Mo. 721, 210 S.W.2d 87, is not in point on its facts. The fraud practiced by the defendant there upon the grantor is not here present.

That there was no consideration for the deeds, as claimed by Victor, is not borne out by the facts, as above outlined. His obligation for attorney fees to Gossom and alimony to Pauline were paid by Julia. All of the existing debts and obligations of the parties concerning the teal estate were paid by Julia from the proceeds of the $42,000 loan. That loan was procured by her as sole obligor and mortgagor. If it be true that Julia needlessly incurred expenses in bringing the partition suit and asking for a receiver, yet Victor was relieved of his personal obligation upon the. prior existing $14,536.25 note to the Kruegers. Victor has not repaid Julia for funds expended for taxes, or for his personal benefit, nor has he tendered or offered to tender the same to her. Besides, as here pointed out by Julia, a voluntary conveyance of land without consideration is valid as .between the parties. Such is the law. Radford v. Radford, Mo., 388 S.W.2d 33, 39 [6-9], and cases there cited. There must be other compelling circumstances besides mere lack of consideration to justify the setting aside of a deed. Rubinstein v. Rubinstein, Mo., 283 S.W.2d 603; Allan v. Allan, Mo., 364 S.W.2d 578; 26 C.J.S. Deeds § 16.

There is no fraud in the alleged intended violation of Julia’s agreement to reconvey to Victor. In Parker v. Blakeley, 338 Mo. 1189, 93 S.W.2d 981, 990, it was said, quoting from Ferguson v. Robinson, 258 Mo. 113, 167 S.W. 447, “‘Equity does not pretend to enforce verbal agreements in the face of the statute of frauds, and the person holding the legal title to real estate will not be decreed to be a constructive trustee, unless there is something more in the transaction than the mere violation of a parol agreement. * * * ’ [T]he ‘simple violation of a parol contract’ does not give rise to a constructive trust ‘for, if such was the law, the statute of frauds would be virtually repealed.’ ” See also the there cited cases of Long v. Conrad, Mo., 42 S.W.2d 357; Gates Hotel Co. v. C.R.H. Davis Real Estate Co., 331 Mo. 94, 52 S.W.2d 1011; and Young v. Kansas City Life Ins. Co., 329 Mo. 130, 43 S.W.2d 1046. Victor’s pleading and evidence (even if considered to be true) show nothing more than a violation of Julia’s oral promise to reconvey to him. That does not amount to fraud, under the foregoing cases, to justify setting aside his deeds. His right to recover is barred by the Statute of Frauds, supra.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    Kenneth SHARP, Respondent, v. W. & W. TRUCKING COMPANY, Appellant.
    No. 52600.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1967.
    Rehearing Denied Dee. 11, 1967.

      Clifford B. Smith, Kansas City, for respondent.
    Harold T. VanDyke, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.
   STORCKMAN, Judge.

This is a personal injury action wherein the jury returned a verdict for $13,000 against the defendants Cleodis Brown and W. & W. Trucking Company, a corporation. The defendant Brown did not appeal. The judgment against the defendant Trucking Company was appealed to the Kansas City Court of Appeals where it was affirmed. On order of this court, the cause was transferred pursuant to Art. 5, § 10, of the 1945 Constitution of Missouri, V.A.M.S. The appellant will for convenience sometimes be referred to as the Trucking Company, W. & W., or the defendant.

The primary contention on appeal is that the trial court erred in refusing to sustain the Trucking Company’s motion for a directed verdict at the close of all the evidence. Additional contentions are that certain documentary evidence was erroneously admitted, that the court erred in giving oral instructions to the jury, and that the verdict is excessive. In determining whether a sub-missible case was made against the defendant Trucking Company, the evidence must be reviewed in the light most favorable to the plaintiff, and he is entitled to all reasonable inferences arising from the evidence. Gardner v. Simmons, Mo., 370 S.W.2d 359, 360[1].

Bowen Construction Company and Blue Valley Crushed Stone Company operated an asphalt plant and rock quarry at 1201 Manchester in Jackson County. These two corporations were owned by the same persons; they produced building and paving materials which were hauled by motor trucks from the plant to job sites of customers. In 1962 this hauling was done by A-l Trucking Company, apparently a voluntary association of about 50 truckers. This arrangement proved unsatisfactory and early in 1963 the Bowen companies went back to dealing directly with individual truckers. The W. & W. Trucking Company was incorporated in October 1962 by Henry Woodward and Booker T. Washington. In March 1963 the Trucking Company made a verbal agreement with the Bowen companies to do their hauling and it was so performing on May 6, 1963, when the accident in question occurred. A written agreement between Bowen and the Trucking Company was not executed until June 19,1963.

The agreement between Bowen and W. & W. Trucking Company granted the Trucking Company the sole and exclusive right to haul and deliver all the crushed stone, gravel, asphalt and other building materials shipped by motor truck in bulk from Bowen’s premises at 1201 Manchester. The Trucking Company was required to own or hire and operate a sufficient number of trucks not exceeding 30 to do all of Bowen’s hauling. The Trucking Company agreed to employ capable and competent men and equipment in good repair and Bowen had the right to reject any drivers or trucks unsatisfactory to it. The Trucking Company agreed to be liable for the value of any load it failed to deliver.

The defendant Cleodis Brown was the owner of two trucks, one of which he drove. He employed Ralph Murray to operate the other one. Brown had hauled Bowen construction materials as a member of A-l Trucking Company and continued with W. & W. Company under an oral arrangement which will be more fully described later. On the morning of Monday, May 6, defendant Brown made some repairs to the truck operated by his employee Murray and was driving it from his home at 1620 Myrtle to the Bowen plant when he collided at 17th and Jackson Street with a motor vehicle driven by the plaintiff who was severely injured. Brown’s defense was failure of his air brakes to operate when he undertook to stop at a traffic sign. The jury found against Brown on the issue and, since he did not appeal and the defendant W. & W. does not raise the question on appeal, we need not consider further the issue of Brown’s negligence.

The question for determination on this appeal is the responsibility of W. & W. for Brown’s acts. The pleadings and instructions designate the standards under which the plaintiff claims the Trucking Company is liable. The petition charges that Cleodis Brown at the time of the collision in question was operating his truck on the business of W. & W. Trucking Company and was acting within the scope of his employment as its agent. Instruction No. 3 directing a verdict against the Trucking Company required the jury to believe that “the driver, CLEODIS BROWN, was operating his motor vehicle within the scope and course of his agency for W & W TRUCKING COMPANY at the time of the collision”. See MAI No. 18.01. Instruction No. 4 states that “Acts were within the ‘scope and course of agency’ as that term is used in.these instructions if: 1. they were performed by CLEO-DIS BROWN to serve the business of W & W TRUCKING COMPANY according to an express or implied agreement with W & W TRUCKING COMPANY, and 2. W & W TRUCKING COMPANY either controlled or had the right to control the physical conduct of CLEODIS BROWN.” See MAI No. 13.06. The instructions thus submit the issues of whether Brown was operating his vehicle within the scope of his agency and define acts within the scope and course of his agency as being performed “to serve the business” of the Trucking Company “according to an express or implied agreement” and that the Trucking Company “either controlled or had the right to control” Brown’s physical conduct.

The agreement between the Trucking Company and Brown for hauling Bowen’s materials was wholly oral. Nevertheless, the trial court admitted in evidence over defendant’s objection a form of written contract which purported to be a lease of an owner’s truck to W. & W. for five years and an agreement by the owner to work for W. & W. for the same period of time. Brown refused to sign such a contract. The defendant Trucking Company contends the admission of this Exhibit 7 was erroneous in that it injected a collateral issue, was not a proper method of proving the agreement between Brown and the Trucking Company, and was misleading and confusing to the jury. The exhibit consists of three separate printed sheets or pages. One is a truck “LEASE” to be signed by both parties whereby the trucker agrees to lease his truck to the Company for a period of five years in consideration of the payment by the Company of the sum of ninety percent of the gross revenue derived from the earnings of the truck during the term of the lease. The trucker agrees to store and care for the truck, to make necessary repairs, not to lease, rent, pledge or hypothecate the truck without the Company’s written consent, that the earnings from the use of the truck shall be paid to the Company and it shall pay the trucker ninety percent thereof, and if the trucker breaches any of the terms or conditions of the lease he shall become liable to the Company for an amount equal to the average earnings of the truck for the previous twelve-months’ period. The Company reserves an option to renew the lease for an additional term of five years. The Company can cancel the lease if the trucker breaches “any of the terms and conditions of this lease or of the Rules and Regulations attached hereto and made a part hereof.”

There were 14 items on the second sheet of the exhibit entitled “RULES, REGULATIONS AND PENALTIES”. Their full text is not important. To indicate their general nature, it is sufficient to say that the trucker agrees that all drivers and owners shall observe yard and lot courtesy, cooperate, be union members, maintain neat and clean personal appearance, keep trucks in good working condition, refrain from the use of alcohol or drugs on the job, obey orders, not indulge in loud, boisterous or profane conduct while on the job, observe traffic laws and ordinances, complete all jobs started, and carry liability insurance for personal injury and property damage in an approved company in the amount required by state law. The third sheet of the agreement is designed for signing by the trucker alone. By its terms he agrees to work exclusively for the Company for a period of five years “at the election” of the Company for any of its signed contract jobs and that his truck is “leased and firmly bound” to the Company for any of its signed contract jobs. The trucker further agrees that all of his earnings and the earnings of his truck shall be paid directly to the Company of which the Company would retain ten percent, and that he will report at all times his places of employment to the Company.

The defendant Cleodis Brown, called as a plaintiff’s witness and examined solely as to the nature of his agreement with W. & W. Trucking Company, identified the form of unsigned contracts, Exhibit 7, and testified he did not sign any such contract or any working agreement. He summed up his agreements and reasons for them as follows : “I agreed to W. &. W. that my truck would be on the job at all times whenever they needed a truck, I would abide by their rules and regulations. I didn’t sign a five-year contract, because I didn’t want the truck tied up five years. I am new at the trucking business, I didn’t know exactly how it would last — in other words, W. & W. didn’t exactly have a signed contract at that time themselves, I didn’t want to sign with them, because they wasn’t signed.” Although Brown’s agreement was entirely oral, it was repeatedly referred to in the trial court as a “lease agreement” and plaintiff’s counsel was permitted to interrogate him about each provision of Exhibit 7 and whether he agreed to it. The exhibit was passed to the jury for their examination despite the fact that it contained irrelevant and incompetent matters, such as the requirement that the truckers carry liability insurance for personal injuries and property damage.

Furthermore, the written contract or contracts are of doubtful validity for lack of consideration and mutuality in that it is not readily apparent that W. & W. obligates itself to provide a minimum amount of work or earnings. This bears on the charge that a collateral issue was injected. That the jury was probably misled and confused is indicated by questions asked by jurors during the trial and especially in connection with the instructions. The inquiries resulted in a lengthy dialogue between the trial court and jury which gave rise to another claim of error in that the court instructed the jury orally. Mr. Brown was permitted to draw the conclusion that he was agreeable to all provisions of the contract offered except the five-year term. Such roundabout methods of proving the relevant terms of an oral agreement are extremely questionable. See Walton v. United States Steel Corp., Mo., 362 S.W.2d 617, 625[7], and University City v. Home Fire & Marine Ins. Co., 8 Cir., 114 F.2d 288, 294[4-7]. In the view we take of the case, however, it is not necessary to rule on the admissibility of the exhibit since we have concluded that all of the evidence in the record viewed in its most favorable light is not sufficient to make a submissible case against W. & W. Trucking Company.

The plaintiff-respondent sets out in his brief the evidence he deems sufficient to make a submissible case on the issues of whether Brown was serving the business interests of W. & W. and whether W. & W. had the right to control Brown’s physical conduct at the time of the accident. In substance it is that “Brown leased his trucks” to W. & W. and garaged them at his home as required by the Trucking Company and that Brown was furthering defendant’s business when the accident occurred in that he was in the act of furnishing motor trucks “in good working condition” to the defendant. The plaintiff further states that Brown worked regularly and exclusively for the defendant W. & W. and reported for work every workable day from the middle of March to the date of the accident; that Brown followed orders and complied with all rules and requirements in the conduct of his work; that the defendant had the right to terminate Brown for insubordination or for violation of any of the rules set up for his conduct; that Brown was required to be a union member and the defendant deducted union dues; that the only business of W. & W. was trucking and under its agreement with Bowen it was required to furnish suitable and serviceable motor trucks in good repair and was required “to own, hire, and operate these properly licensed motor trucks suitable for hauling Bowen’s materials” which it did by hiring and employing the various truckers under strict rules and agreements as to the way its business was to be conducted. Specifically in this connection, the respondent in his brief states: “Cleodis Brown was told to report with his truck out to 1201 Manchester on the date of the accident (Tr. 129). Pursuant to such instruction he had sent his other truck to 1201 Manchester earlier that morning. On Monday, May 6, 1963, Cleodis Brown was proceeding along his usual route to the Bowen Plant when the accident occurred (Tr. 102). These facts alone constitute substantial probative evidence that Brown was under the direction and control of appellant, and subject at least to its right of control at the time of the accident.” The respondent asserts that under the evidence most favorable to him there is substantial proof that the relation between W. & W. and Brown was that of master and servant and that Brown was not an independent contractor.

The plaintiff persists on appeal as he did in the trial court in asserting that Cleodis Brown “leased his trucks” to W. & W.; he infers that a relation was created which gave the Company some measure of control over them at all times. A distinctive feature of a lease of property, real or personal, is that it conveys an interest in the property for a fixed or definite period of time and is supported by a consideration. State v. Cordray, 200 Mo. 29, 98 S.W. 1, 2[3]; Kolb v. Golden Rule Baking Co., 222 Mo.App. 1068, 9 S.W.2d 840, 843[3]; Hahs v. Cape Girardeau & C. R. Co., 147 Mo.App. 262, 126 S.W. 524, 528-529[7]; Joplin Supply Co. v. West, 149 Mo.App. 78, 130 S.W. 156, 161 [5]. There is not the slightest evidence that W. & W. had a lease on the trucks. In fact the main reason given by Brown for refusing to sign a contract with W. & W. was to avoid committing his truck for a definite period of time. There is no proof that W. & W. had any possessory or other property interest in Brown’s trucks.

For similar reasons Brown refused to sign the third part of Exhibit 7 which purported to be an agreement by him “to work exclusively” for W. & W. The hauling agreement between Brown and W. & W. was altogether oral and was not for a definite period of time. A contract for an indefinite period of time may be terminated at the will of either party. Superior Concrete Accessories v. Kemper, Mo., 284 S.W.2d 482, 490[15,16]; Paisley v. Lucas, 346 Mo. 827, 143 S.W,2d 262, 271[17], The Trucking Company had no claim upon the services of Cleodis Brown or the use of his trucks that could not be terminated at the will of Mr. Brown. If he did not report for work or permit his trucks to be used, he incurred no liability. Furthermore, the printed list of rules and regulations to which Brown says he agreed are largely standards of behavior and good business conduct, observance of which would be expected of anyone performing a service. Since the hauling agreement was terminable at the will of either party, it could be ended at any time for any reason or for no reason at all. The fact that Cleodis Brown orally agreed to observe the rules and regulations is of no significance on the issues involved; nor is the fact that Brown was required to be a union member and the Trucking Company withheld his dues. It is a common requirement that all workmen on a job be union members even though they are working under independent contracts. The fact that Brown repaired, maintained and stored his truck or trucks at his home is quite consistent with his being an independent contractor and does not tend to prove plaintiff’s contentions.

Cleodis Brown was paid on a ton-mile basis for materials delivered. This payment included the use of the truck as well as the services of the driver. Unless he was actually delivering materials, he was not earning. There was no guarantee that Brown would be given the opportunity to haul any certain number of loads and hence earn any certain amount. The compensation of W. & W. Trucking Company was the ten percent it got from the earnings of the truckers. The evidence is quite persuasive that Cleo-dis Brown was an independent contractor whose obligation was limited to the delivery of each cargo successively entrusted to him without being subject to the right of control by W. & W. over his physical conduct in the manner of doing so. See Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918[12], and Dean v. Young, Mo., 396 S.W.2d 549, 553—554[3,4]. It is not necessary, however, for us to decide the precise relation involved.

Even though it be assumed for the purpose of the case that the relation between W. & W. and Brown was that of master and servant, it does not follow that the plaintiff has made a submissible case. The mere existence of the relationship of employer and employee is not sufficient in and of itself to impose on the employer in all circumstances liability for whatever torts the employee may commit since not all acts of an employee are as an employee or in the course and scope of his employment. Hopkins v. J. I. Case Company, Mo., 293 S.W.2d 402, 405[1]; Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365, 368-369[6-9]; Usrey v. Dr. Pepper Bottling Company, Mo.App., 385 S.W.2d 335, 338[2]; Restatement of the Law Second, Agency 2d § 233, p. 516.

Although it is disputed in some particulars, the evidence most favorable to the plaintiff is that Cleodis Brown reported to the Bowen plant at 1201 Manchester on Saturday, May 4, 1963, but did not get any hauls that day and Booker T. Washington told him to come back on Monday, May 6. On Monday Brown sent one of his trucks to the plant by his driver Murray. Mr. Brown directed Murray to tell Booker that he, Brown, would be a little late with the other truck. Thereafter, Brown got the necessary parts and completed the repairs on the other truck. He was driving the truck from his home to the Bowen plant along his usual route when the accident in question happened at approximately 10 a.m.

“It is generally held that getting to the place of work is ordinarily a personal problem of the employee and not a part of his services to his employer, so that in the absence of some special benefit to the employer other than the mere making of the services available at the place where they are needed, the employee is not acting within the scope of his employment in traveling to work, even though he uses his employer’s motor vehicle, and therefore the employer cannot be held liable under the doctrine of respondeat superior to one injured by the employee’s negligent operation of the vehicle on such a trip.” 8 Am.Jur.2d, Automobiles and Highway Traffic, § 630, p. 184. See also 60 C.J.S. Motor Vehicles § 453c p. 1163, and Annotation: 52 A.L.R.2d 354, § 3[a]. The Missouri cases are in accord with this general rule. See Talley v. Bowen Construction Co., Mo., 340 S.W.2d 701, 706[9]; Sherwood v. Arndt, Mo., 332 S.W.2d 891, 893[1]; Stokes v. Four-States Broadcasters, Mo., 300 S.W.2d 426, 429[5]; Curtis v. Juengel, Mo.App., 297 S.W.2d 598, 601; Randall v. Steelman, Mo.App., 294 S.W.2d 588, 592[2]; Beckwith v. Standard Oil Co., Mo., 281 S.W.2d 852, 855[1]; Van Hook v. Strassberger, Mo.App., 259 S.W.2d 399, 405[6]; Stone v. Reed, Mo.App., 247 S.W.2d 325, 331[6]; Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 766[9]; and Halsey v. Metz, Mo.App., 93 S.W.2d 41, 44[1].

Gardner v. Simmons, Mo., 370 S.W.2d 359, cited by the respondent, also recognizes the “going-and-coming rule” but holds it not applicable to the facts of that case. The defendant Simmons was employed by a tire company as an inside and outside salesman and service man on a salary plus commissions and was required to furnish his own automobile for transportation. His car broke down on his way to work. He hitchhiked to work and with another employee kept a business appointment. Then with an automobile mechanic he went to his disabled car, got it started, and while it was being road tested the accident occurred. The opinion points out that since Simmons had gotten to work and transacted business a jury question was presented as to whether he was acting within the scope of his employment at the time in question. 370 S.W.2d at page 364[8]. Madsen v. Lawrence, Mo., 366 S.W.2d 413, is also distinguishable on the facts. The driver of a truck engaged to haul dirt from an excavation had arrived at the job site. While waiting for a load he parked his truck, left it unattended, and it rolled down an incline and injured a child. This court held the trial court did not err in granting the plaintiff a new trial on the ground a verdict in favor of the excavator was against the weight of the evidence.

We are mindful of the rule that whether a party is liable under the doctrine of respondeat superior depends on the facts and circumstances in evidence in each particular case and that no single test alone is conclusive of the ultimate issue of the party’s interest in the activity and his right of control. Gardner v. Simmons, Mo., 370 S.W.2d 359, 360-361[2]. We have so considered the evidence.

Cleodis Brown was on his way to work traveling in a motor vehicle owned and operated by him and which he maintained at his own expense. The route he took was of his own choice. He was not being paid wages or a salary. His earnings depended entirely upon hauling actually done and was based solely on ton-miles. In order to get and perform hauling assignments satisfactorily Brown had to keep his trucks in good working condition whether W. & W. required it or not. He reported for work on the previous Saturday but did not get to haul anything that day; he had no guarantee that there would be any loads for him to haul on Monday, May 6. There is no evidence that W. & W. Trucking Company would derive any special benefit from the trip other than the general benefit incident to truckers making their “services available at the place where they are needed”. Nor is there any evidence that W. & W. had any control or right of control over how, when, or if Mr. Brown got to the Bowen plant. There is nothing in the record to distinguish Mr. Brown’s status from that of myriads of other persons who drive themselves to work each day in their own automobiles without exposing their employers to liability for their tortious acts en route. The general rule applies.

Under the evidence and on authority of the decisions heretofore cited, a submissible case was not made against the defendant W. & W. Trucking Company and the trial court erred in refusing to sustain its motion for a directed verdict. In view of this holding, it is not necessary to rule other questions presented.

The judgment against defendant W. & W. Trucking Company is reversed and the cause is remanded with directions to enter judgment in favor of such defendant.

All concur.