author: MAUGHMER, Commissioner.

text:
    John CLOSSER, Appellant, v. The FLEMING COMPANY and Aetna Casualty and Surety Company, Respondents.
    No. 24070.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.

      Thaine Q. Blumer, Kansas City, Blumer & Wright, Kansas City, of counsel, for appellant.
    James F. Stigall, Kansas City, Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel, for respondents.
   MAUGHMER, Commissioner.

Claimant has appealed from the denial of his claim for workmen’s compensation benefits. He alleges that on February 5, 1962, while in the course of his employment as a truck driver by defendant he sustained injuries. He asserts that these injuries were incurred in and resulted from an “accident” within the meaning of the Act.

The Referee and the Industrial Commission found that claimant “did not sustain an injury by accident arising out of and in the course of his employment” and denied the claim. On review, the circuit court affirmed. Claimant asserts that the trial court erred in affirming the award of the Commission because his injury was the result of “unusual strain” or “abnormal strain” and therefore was an accident within the meaning of the Act. On appeal we are confronted with one question, namely, “did claimant sustain an injury caused by accident arising out of and in the course of his employment” ?

The courts have many times declared and it is generally understood that we cannot substitute our judgment on a disputed question of fact for that of the Commission. What we must decide is whether or not that body could reasonably have made the. finding that it did make. The burden is on claimant to prove a compensable injury.

On February 5, 1962, John Closser, the claimant, arrived at the Meadowbrook Super Market in a tractor-trailer unit with a load of groceries. Two employees of Meadowbrook assisted Closser in unloading. The frozen foods located in the back of the truck were unloaded first and without incident. Then the men began unloading sugar which had been placed in the nose of the truck. Some of the sugar bags contained 12 sacks, weighing five pounds each and some contained 6 sacks, weighing ten pounds each. Each bag, therefore, weighed 60 pounds. The claimant was required to put the bags onto a conveyor which carried them from the truck to the loading dock. Claimant said that more than half had been unloaded and then a bag of sugar did not roll down the conveyor easily and he had to push; that the conveyor suddenly stopped and he felt a sharp pain in his back and hip area. He said that at this particular time he was twisting his body in an unusual manner. The witness Newton testified that at the time of the injury claimant’s back was “twisted like a pretzel”. The claimant, the witness Newton and Gerald Ervin, who was also helping to unload the sugar, were the only witnesses to the occurrence. We quote from plaintiff’s own testimony:

“Q. Now, you would lift these sacks of sugar with both hands and twist your body to the right and place them on the roller, is that correct? A. Yes.
“Q. And you intended to twist your body in the manner that you did, is that correct? A. Repeat that.
“Q. You intended to twist your body in the manner that you did — is that correct? A. Yes.
“Q. And you twisted your body in that manner on each prior occasion, didn’t you? A. To put it on the roller?
“Q. Yes, on each occasion before you claim you were injured?
MR. BLUMER: You mean on different dates?
MR. STIGALL: No, that particular day.
“Q. (By Mr. Stigall:) You twisted your body the same way each time, didn’t you?
MR. BLUMER: Each time before this incident?
MR. STIGALL: Yes. A. Yes.
******
“Q. And you had unloaded about half the sugar before you claim you were injured? A. Over half.
******
“Q. And you allege that the pain or injury occurred as you were pushing this sugar down the roller with your left hand? A. That is correct.
“Q. And you intended to lift this sugar and place it on the roller in the manner that you did? A. Yes.
“Q. And they were all lifted the same way except you had to bend down more for some than you did for others ?
A. Yes, sir.
“Q. You intended to twist your body in the manner that you did, didn’t you ?
A. Yes.
“Q. You planned to do it that way?
A. That’s the only way to do it
“Q. And you twisted your body in that manner on each prior occasion, didn’t you? A. Yes.
“Q. You did it the same way each time? A. Yes.
“Q. And you had unloaded about twelve or fifteen sacks of sugar under similar conditions before you felt this pain in your hip ? A. There was more than that.
“Q. Even more tiran that? A. Yes.
“Q. And you exerted the same amount of strength in pushing those other sacks-of sugar as you did the time you felt the pain, is that correct? A. Will you repeat that?
“Q. You exerted the same amount of strength in pushing those other sacks of sugar as you did the time you felt the pain, is that correct? A. Yes.
“Q. And the only difference between this time and all the other times was that this time you felt the pain in your hip, is that correct? A. Yes.”

After the alleged injury claimant resumed working within a “matter of seconds”. He first told defendant company’s foreman about it on the following morning. He first visited a doctor one week after the occurrence. Plaintiff was off work for three weeks, then was operated for a ruptured disc. On July 25, 1962, plaintiff began work as a truck driver for Crouch Brothers and was so working when the hearing was held on September 5, 1962.

The Industrial Commission affirmed the award of the Referee denying compensation and stated:

“We find from all the evidence that the employee has failed to prove that he sustained an accident arising out of and in the course of his employment within the meaning of the Missouri Workmen’s Compensation law. We are further of the opinion that the employee’s own evidence negates the contention that he sustained an abnormal or unusual strain which constituted the alleged accident”.

Section 287.020(2) gives this definition of “accident” as meant by the Act:

“The word ‘accident’ as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury”,

The question as to just what facts and circumstances constitute an accident so as to be compensable under the Missouri Workmen’s Compensation Act has been disputed for many years. Our appellate courts have apparently had some difficulty in determining the law and applying it to various facts and situations. The Supreme Court en banc, in Crow v. Missouri Implement Tractor Company and Hardware Mutual Casualty Company, Mo., 307 S.W.2d 401, 405, held that a slip or fall was not necessary but that a recovery could be founded upon an unusual strain or exertion without a slip or fall. In the Crow case the claimant had sustained an injury while he was manually holding up the elevator to a corn picker. He did not in the discharge of his usual and regular duties, manually hold up the elevator. It appeared from the evidence that this particular machine was new and due to paint on the equipment, the turnbuckle could not be turned and the elevator adjusted in the usual way. The Commission found factually that insured had suffered an “abnormal strain” but that it was not preceded by any “unusual or unexpected occurrence” and denied compensation. The Supreme Court ruled that such an “abnormal strain” sustained in unusual circumstances could become the basis of an affirmative award and cited examples from two other cases in the following language:

"In Baird v. Gleaner Harvester Corporation, Mo.App., 172 S.W.2d 892, the employee was injured because some extra weight was suddenly shifted to him and he sustained an injury to his back. In State ex rel. United Transports, Inc. v. Blair, 352 Mo. 1091, 180 S.W.2d 737, the employee was injured while attempting to loosen a lug which held a tire on an automobile”.

It will be noted that in these two examples the strain was not only “abnormal” but occurred when the employee’s working procedure had deviated from the normal routine. On page 405, the Supreme Court opinion made reference to and quoted approvingly the rule announced by the Supreme Court of Maryland as follows:

“The court stated the general rule to be as follows [Keely-Springfield Tire Co. v. Daniels, 199 Md. 156, 85 A.2d 795], 85 A.2d loc.cit. 797(1): ‘This broad rule, which has been adopted quite generally in the United States following the decisions in England, has not been fully accepted in Maryland. In this State the sudden and unexpected rupture of some portion of the internal structure of the body, or the failure of some essential function of the body, is held to be an accidental injury only when it results from some unusual strain or exertion of the employee or some unusual condition in the employ- . ment”.

The Springfield Court of Appeals (Brotherton v. International Shoe Company, Mo.App., 360 S.W.2d 108) has recently reviewed and discussed this whole matter. Brotherton, while unloading a perforator, was using a long wrench with a pipe over the handle of the wrench. He moved out on the end of the pipe and bounced up and down to pry the perforator loose. His foot slipped and he hurt his back. In part, the Commission found “while employee’s exertions in pulling on said pipe, may have been unusual, abnormal and outside of the scope of his normal activities, the evidence does not so indicate” and denied compensation. The appellate court held that Brotherton’s abnormal and unusual strain was sufficient to constitute a compensable accident and reversed the Commission. The court there referred to and again approved its statement of the rule as declared in Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, as follows:

“Where an employee suffers an unexpected and abnormal strain (at least while he is engaged in doing something beyond and different from his normal routine) and, as a result thereof, sustains an injury which is not the result of orderly natural causes, the injury is an accident within the meaning of sec. 287.020(2)”.

Both parties have cited the very recent case of Flippin v. First National Bank of Joplin, Mo.App., 372 S.W.2d 273. In that case the claimant, a 42 year old custodian of defendant’s bank building, who had been apparently in good health, collapsed and died from a coronary heart attack after shoveling snow extensively from the sidewalk area. The Commission awarded compensation but the Springfield Court of Appeals reversed and held that the deceased had not suffered an “accident” within the meaning of the Act.

From a study of the above authorities, we can arrive at two rather definite conclusions: (1) It is not necessary that claimant slip or fall; (2) If claimant suffers an injury resultant from an “abnormal strain” and while he is engaged in doing something different from his normal working procedure, it is an accident under the Act and compensable. Where such a situation exists our courts have ruled accidents and approved recoveries, especially where the Commission has made an affirmative award and findings. But as this court stated in Hall v. Mid-Continent Mfg. Company, 366 S.W.2d 57:

“However, if, for example, an employee’s customary duties require him to regularly lift 150 pound sacks of feed or swing a pick mining coal and on one of these occasions while lifting or swinging, he injures his back, we doubt if he has suffered an accident within the meaning of the Act or under the Missouri decisions herein cited”.

In our case Mr. Closser does not claim that he slipped or fell. He was doing the same work that he had done for two years and doing it in the same way. His method in attempting to unload the sugar bags was identical with the method used by him on various other occasions. The evidence all supports this conclusion. In fact, such was the claimant’s own testimony. The Commission found that on this occasion he was not exerting any more force or pushing in any different manner than on other occasions. The strain cannot be said to have been abnormal or unexpected, only the result, the injury, can be said to have been unexpected. We believe that all of these conclusions are supported by the evidence. It must be remembered that this court, as to factual findings, cannot substitute its judgment for the findings of the Commission, but rather must affirm that body unless the findings are unsupported by substantial evidence, in which event the question becomes one of law.

It is our conclusion that under the law and the facts the Commission was correct in holding that “employee did not sustain an injury by accident arising out of and in the course of his employment”.

The judgment of the circuit court affirming the finding of the Commission denying compensation is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: HUNTER, Judge.

license: Public Domain

text:
    Harry W. DIXON, Jr., Appellant, v. ART BUNKER MOTORS, INC., and Travelers Insurance Company, Respondents.
    No. 24080.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.

      Harry Weed, Garrett, Weed & Jones, Kansas City, for appellant.
    Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for respondents.
   HUNTER, Judge.

This is a workmen’s compensation claim by Harry W. Dixon, Jr., appellant, for specified disability resulting from an accident occurring on April 24, 1961. Respondents, Art Bunker Motors, Inc., is the employer and Travelers Insurance Company is the insurer. The Referee and Industrial Commission denied compensation. The circuit court affirmed the denial award of the Industrial Commission and this appeal followed.

In his claim for compensation claimant alleged that the parts of his body injured were “Back, legs, head, right wrist.” He also alleged that the exact nature of his permanent injury was “Severe sprain of the muscles and soft tissues in plaintiff’s back and rupture of intervertebral discs in plaintiff’s lumbar spine with resulting headaches , and leg pains.” His complaints at the time of the hearing before the Referee on July 16, 1961, which he attributed to the April 24th, 1961 fall were, “I have a small amount of pain in my low back, which sometimes becomes severe, and I have a burning area into both sides of my hip. When my low back pain becomes severe I wear my corset.”

The Referee made the following finding and award: “ * * * the employee, Harry W. Dixon, Jr., sustained an accident on April 24, 1961, arising out of and in the course of his employment with Art Bunker Motors, Inc., resulting in alleged injuries to the head, neck, back, legs and right wrist, for which he has been fully compensated.

“I further find that although said employee incurred medical expense after the first ninety days following the date of the accident herein, for which he is claiming reimbursement, he did not secure authority therefor from the employer or insurer, nor did he secure an order from the Division of Workmen’s Compensation determining such treatment to be necessary and reasonable. An order to pay such medical expenses incurred after said ninety-day period is therefore denied.

“Additional compensation therefore must be, and the same is, hereby denied.”

As a result of its review, the Industrial Commission’s Final Award denying compensation read: “We find from all of the evidence that the employee sustained an accident on April 24, 1961, arising out of and in the course of his employment with Art Bunker Motors, Inc. ■

“We further find from the weight of the credible evidence that the condition complained of by the employee was not causally related to said accident and, further, that he sustained no disability as a result of said accident.

“Compensation, therefore, must be and the safne is hereby denied.”

Since claimant contends the findings and award of no compensation by the Industrial Commission are not supported by competent and substantial evidence and are contrary to the overwhelming weight of the evidence it is necessary to state the evidence in some detail. This evidence consisted of the testimony of claimant, stipulations of counsel, and certain medical and hospital reports.

On April 24, 1961, about 3 :30 p. m. claimant in the course of his employment was descending an aluminum step ladder with his back to the steps and with automotive parts in his hand. The ladder wobbled, causing him to fall some twelve rungs to the concrete floor below. His head and back struck the rungs of the ladder as he fell and he lit in a sitting position with his legs tangled underneath and his wrist down. “I crushed my ring into my right ring finger and I sprained my right wrist and there was considerable soreness throughout my body.”

Claimant remained on the job until quitting time that day. He saw a chiropractor. He worked the next day, April 25th, although he “didn’t feel so good.” He also worked on April 26th, and on that day another incident occurred which can be best described by direct reference to his testimony. “Q. Following this occurrence with the ladder, didn’t you hurt yourself out there lifting a case of oil ? A. Yes, I was taking the oil from the deck lid and that is when I started getting the numbness and the loss of partial use of my legs. I didn’t have too much feeling from here down to the top of my knees (Indicating). Q. It was after you injured your back lifting the case of oil that you first went to see the doctor, wasn’t it? A. I believe that’s correct.” Claimant’s brief gives the following statement of this incident: “Subsequent to the fall from the ladder and prior to his admission to Lakeside Hospital, he strained the injured portion of his back in lifting and taking a case of oil from a deck lid and ‘that is when (he) started getting the numbness and the loss of partial use of (his) legs.’ ”

The Lakeside Hospital report concerning this incident read, “Several days later (after ladder accident) pt. was lifting and strained , injured portion of back which was followed 'by heaviness & difficulty in lifting legs. He also had severe headaches. Tentative Diagnosis — Low back strain. Final Diagnosis — Acute lumbar sacro strain.”

On April 26th claimant again worked but he complained to his employer’s parts manager that he was “suffering quite a bit of pain and having trouble standing”. He was thereupon sent to Doctors Zauder and Zuril who in turn had him admitted to Lakeside Hospital at 3:00 p. m. on April 26, 1961.

Claimant was in Lakeside Hospital for eight days, from April 26, to May 3, 1961. While there he was x-rayed, given injections, traction and physical therapy.

After his discharge on May 3, 1961, from Lakeside Hospital claimant returned to Dr. Zauder and Zuril’s Clinic two or three times and was released. Claimant stated that even though they had released him he “didn’t feel they done me any good, I was still suffering from most everything I had originally went in the hospital with. I wasn’t satisfied so I went to talk with Mr. Bunker and he suggested Dr. Overesch who he said was his insurance company’s doctor * * This was about a week after his discharge from Lakeside Hospital, and he saw Dr. Overesch who examined him, gave him a prescription for a support garment, a heat treatment and sent him to Jackson’s Physical Therapy Clinic where he received numerous treatments from May 23rd to July 14, 1961. Dr. Overesch then ordered these treatments stopped and advised him that he was “dismissed”.

Claimant again complained to Mr. Bunker and he was discharged as an employee. On April 26th, or much more probably on June 28, 1961, claimant was involved in another incident involving a little girl who ran into the path of his automobile. Both appellant and respondent in the briefs treat the automobile incident as having taken place on June 28, 1961. Again we refer specifically to claimant’s testimony. “A. The accident (ladder fall) happened about three-thirty and I stayed until quitting time and I went home and the next day I came to work and worked. I didn’t feel so good, but I did work. The day after that was when I first went to the doctor, which is when I had the accident you are referring to. Q. With the little girl? A. Yes, that is the accident he was referring to, I suppose. That was the 26th', if I am not mistaken. I was considerably sore at the time.”

|- The Research Hospital record contained two entries concerning this event. One of . these entries read, “This pt. was involved in an automobile accident & has subsequently suffered severe back pains radiating into legs.” The other mentioned hospital entry stated, “pt. was involved in an auto accident May 61, since this time he has had pain in the lumbar and dorsal areas of the back. Pain in renal areas, paresthesia in feet, pain in neck, back of head and headaches.” When asked about those entries claimant stated, “A. It wasn’t an automobile accident. A little girl ran out into the side of my moving automobile. We didn’t collide and I didn’t hit the little girl. We went to Court over it and they found me ‘Not Guilty.’ Q. Did you have to make a sudden stop? A. Yes, I did, to keep from killing her. Q. And that caused you to have pain in the back? A. This was after the accident at Art Bunker’s. Q. This automobile accident was after the occurrence at Art Bunker’s when you fell down the ladder ? A. Yes, sir. Q. Do you remember telling Dr. Graham this: ‘Patient was involved in an auto accident in May, 1961, since this time he has had pain in the lumbar and dorsal areas of the back.’ Did you make that statement to Dr. Graham? A. I didn’t make it as you have it there. I do remember making a statement, but not that one. Q. Do you remember telling Dr. Graham on November 20, 1961, that you were involved in an automobile accident and had subsequently suffered with severe back pain, radiating into the legs? A. Yes, sir. Q. You told him that? A. Yes.”

Dr. Overesch (of Drs. Zuber and Over-esch’s medical office) in a written report dated July 7, 1961, stated, “The above captioned patient was re-examined in this office on June 28, 1961, and the following report is submitted.

“When the patient appeared this morning for re-examination he appeared to be quite nervous and upset because as he states he almost ran over a little girl in his car the night previously.”

On July 31st, without the knowledge or permission of his former employer or of the Workmen’s Compensation Division, he went to Dr. Graham. He commenced work at a filling station on November 3, 1961. On November 19, 1961, Dr. Graham hospitalized him in Research Hospital. There he was examined and given a myelogram test, physical therapy and injections. He was in Research Hospital eight days, from November 19, to November 26, 1961, under the care of Dr. Graham with Doctors Lewis and Smith in consultation. Dr. Graham’s report recited what claimant told him about his fall from the ladder on April 24, 1961, and gave these conclusions of the result of his examination of claimant: “These signs and symptoms reveal definite nerve indication of a herniated disc. In my opinion this patient has sustained a definite permanent injury to the central nervous system. Certain nerve tracts to the brain have been permanently injured.

‡ ifc & * H* *

“Diagnosis: (1) Relapsing herniated in-tervertebral disc between four and five lumbar, (2) Lumbodorsal neuromyositis, (3) Ligament tears, (4) Cervical neuromyo-sitis, (5) Dorsal fibrositis.” By supplemental report dated July 18, 1962, Dr. Graham rated claimant as having a permanent partial disability of seventy-five per cent of the body as a whole.

Dr. Graham’s bill in the sum of $150.00 was admitted into evidence by agreement. Claimant testified the amount of the bill for Research Hospital was $346.88; Dr. Revis Lewis, $110.00; the anesthetist, $20.-00; and Dr. Ira T. Smith, $90.00.

Prior to the April 24,1961 ladder incident claimant had suffered three accidents from which he had substantial complaints of injury referable to his back. On October 22, 1958, while working for the M. & F. Drywall Company he fell while sanding a' ceiling “injuring my right wrist, left hand,left leg and ankle and my right shoulder and I had soreness in my back and I had pretty severe headaches and in general I was pretty sore.” He settled the resulting Workmen’s Compensation claim for $2,660.-50. On December 8, 1959, at a Safeway Store he slipped on a foreign particle on the floor “and I struck the back of my head on one of the metal push carts and I lit on my right hand, spraining my wrist. * * * ” He was treated for that fall by a Dr. Pardo, an osteopathic physician. His complaints were of pain in the lumbo-sacral area, soreness in the legs and pain in the lower back.

In the winter of 1960 claimant was involved in a rear end automobile collision. “I got what the doctor said was a whiplash and I was considerably stiff and again had headaches and was pretty uncomfortable” * * * There was “soreness from my waist line to my neck”. His resulting complaint to Dr. Korth was of “a tired sensation associated with pain and stiffness in the low back.” He had this pain “periodically but not every minute of the day”. He settled a claim for that injury for $750.00. Claimant testified that he had recovered from the effects of these three accidents prior to his April 24, 1961 ladder fall.

In reviewing a compensation casé our duty and that of the circuit court is to determine whether the Commission’s award is supported by competent and substantial evidence upon the whole record. Sec. 22, Art. V, Const, of Mo.1945, V.A. M.S. The reviewing court may not substitute its own judgment on the evidence for that of the Commission. However, the reviewing court is authorized to decide whether the Commission could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Hall v. Spot Martin, Mo.Sup., 304 S.W.2d 844.

In the process of determining whether the Commission could have reasonably made its findings, and reached the conclusion it has reached upon consideration of all the evidence before it, we view the record in a light most favorable to the findings of the Commission, consider the favorable inferences which the Commission had a right to draw from the evidence before it, and then determine whether the Commission’s findings, even if supported by competent and substantial evidence, are contrary to the overwhelming weight of evidence on the whole record. Francis v. Sam Miller Motors, Mo.Sup., 282 S.W.2d 5.

Our first question, which we acknowledge is a close one, is whether the Commission’s award is supported by competent and substantial evidence. It must be emphasized that the Industrial Commission did not find that claimant is not suffering from any disability but rather that on the record before it, the Commission was of the view that’he sustained no disability as a result of the April 24, 1961 accident.

Our conclusion is that the Commission’s' award is supported by competent and substantial evidence. We refer briefly to those facts which we deem persuasive of the question. Following his fall on April 24, 1961, claimant finished his work day and continued to work the two following days. It was then that he injured his back lifting a case of oil. It was not until after he had injured his back lifting the case of oil that he sought any medical aid. While there is a passing mention of his having seen a chiropractor there is nothing in the record to demonstrate that this had' anything to do with his presently litigated complaints he attributes to his fall on April 24, 1961. Indeed, there is no suggestion that he made any complaints to, or was examined by, or treated by the' chiropractor for anything. It is even somewhat hazy as to whether he saw the chiropractor before or after the oil lifting accident. We believe the related evidence is sufficiently substantial and competent to support the Commission’s conclusion that it was not the April 24, 1961 ladder accident that caused whatever injuries of which claimant later complained. It was within the exclusive province of the Commission to decide the inferences to be drawn from the evidence, and under these facts we are unwilling to rule that the particular inferences it must have drawn to reach the result announced in its final award were arbitrary or unreasonable as a matter of law.

Also of some support to the Commission’s award is the evidence concerning claimant’s automobile incident involving the little girl who ran into the path of his car causing a violent application of the car’s brakes and a sudden stop, resulting in severe back pain, particularly in the lumbar and dorsal regions, with the severe pain radiating into the legs. The injuries resulting from the sudden stopping of the car could be viewed as not attributable to the April 24, 1961 ladder incident. Hall v. Spot Martin, supra, 304 S.W.2d loc. cit. 852(5).

On June 28, 1961, claimant was examined by Dr. H. B. Overesch who at that time found no evidence of any residual disability of an orthopedic nature. Claimant was reexamined on September 7, 1962, by Dr. Harold V. Zuber who at that time found no objective evidence of disability due to trauma in claimant’s back or neck. Dr. W. P. Williamson, a neutral examiner, on September 22, 1962, examined claimant and found no objective evidence of disability. While Dr. Wallace Graham in consultation with Dr. Lewis diagnosed a relapsing type of herniated intervertebral disc, the Industrial Commission had the right to accept the evidence of Drs. Overesch, Zuber and Williamson as persuasive. It is noteworthy that in the later one of Dr. Graham’s two reports, the report did not state specifically that his findings concerning claimant were the result of the April 24, 1961 accident. Rather, the only reference in this report indicative of the cause of claimant’s complaints was, “He gave a history of having been in an accident in May, 1961, and has had severe continuous pain in the lower back radiating down the legs since that time.” This reference could have been to the incident involving the sudden stop to avoid hitting the little girl. Claimant’s counsel treats this incident as having occurred on June 28, 1961, which is prior to claimant’s first visit to Dr. Graham on July 31, 1961.

As earlier indicated our conclusion, in view of the limited scope of judicial review in this type of case, is that there is competent and substantial evidence upon the whole record to support the Industrial Commission’s award, and that the award is not clearly contrary to the overwhelming weight of the evidence.

Claimant also contends the Commission erred in denying his request for additional findings of fact. This request, submitted prior to the entry of the final award by the Commission, asked: “1. Whether said employee had any permanent partial disability at the time of his examination by Dr. Graham Wallace on or subsequent to July 31, 1961, and if so, how much? 2. Whether said employee had any permanent partial disability prior to the time of his alleged injury on April 24, 1961, and if so, how much?

Findings of facts are required by Sections 287.460 and 287.490 RSMo 1959, V.A.M.S., and one of the questions on appeal, as provided in Sec. 287.490 is whether the facts found by the Commission support the award. The finding of facts should be sufficient to show how the controlling issues have been decided. Otherwise the reviewing court will be unable to know what the Commission has really determined in order that it may know what to review, and whether or not correct rules of law have been applied to facts which properly could be found on the particular record. Groce v. Pyle, Mo.App., 315 S.W.2d 482; Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 142. As expressed by Judge Hyde in Finerson v. Century Electric Co., Mo.Sup., 227 S.W.2d 740, 746: “* * ■plain, straightforward unambiguous findings should be made at least as to the essential controverted ultimate facts. * * * If the Commission does not make a finding on essential controverted facts, the Appellate Court will likely presume (if there is ■substantial evidence to support it) that the facts were decided in whatever way is necessary to fit the result. Thus a litigant might lose without either the Commission or the Court actually deciding a disputed controlling fact issue. That is why the Commission should make findings on the really controlling fact issues.”

Has the Commission in the instant case met the statutory fact finding requirements? We think it has. It has specifically found that claimant suffered no disability as a result of the accident on April 24, 1961, and that the conditions .about which he complained were not causally related to that accident. The requested ■findings were not essential to an understanding of what the Commission determined in making its final award, nor to a judicial review of it. It would be unreasonable and unsound to require the Commission to determine which one or more, if any, of the many other accidents claimant has ex-perienced caused the physical conditions of which he complained at the hearing. It also would be unreasonable to require the Com-mission to determine whether claimant had .a permanent partial disability when he was -examined by Dr. Wallace on and subsequent to July 31, 1961, and if so, how much; •or to determine whether he had any permanent partial disability from any cause prior ■to the time of his alleged injury on April .24, 1961; and if so, how much. Such findings would be on matters other than the relevant and decisive issue of what dis- . ability, if any, claimant suffered in the April 24, 1961 accident. Claimant has the 'burden of proof on that issue, but no one had any duty to provide evidence on how or when the conditions claimant complained of occurred, if they did not occur as a result of the April 24, 1961 accident. Thus, claimant would have us require the Industrial Commission to make findings regarding matters which were not the ultimate fact issues, nor a disputed controlling fact issue, nor essential to an understanding of the Commission’s award or to a judicial review of it, and upon matters that the record is insufficient to provide a basis for determination. We do not believe the mentioned statutory sections required the Industrial Commission to make findings of fact of the kind requested, and the Industrial Commission did not err in overruling the request.

The Commission, of course, must always find the ultimate fact or facts upon which its award rests. It is unnecessary and, hence, not required, that the Commission make additional findings of fact, which are not ultimate facts, except in those circumstances where necessary to reveal the true basis of its decision in sufficient particularity to permit a proper review of that decision by the reviewing court.

Claimant’s final contention is that the Commission erred in not requiring the employee and insurer to pay the medical expenses of $756.88 incurred by claimant after the first ninety days and after both liability and further medical treatment were denied to claimant by the employer and insurer. See, Section 287, 140 RSMo 1959, V.A.M.S. However, this matter is necessarily resolved as a result of our holding that the Commission’s findings that claimant sustained no disability as a result of the April 24, 1961 accident was supported by competent and substantial evidence and was not clearly contrary to the overwhelming weight of the evidence. A claimant who has suffered no disability as a result of the accident upon which he premises his recovery is not entitled to hospitalization for possible disability resulting from some other accident or some other cause.

For the reasons set out above, the judgment of the circuit court affirming the Industrial Commission’s final award of no compensation is affirmed.

All concur.


author: HOGAN, Judge.

text:
    W. R. ALLISON, Plaintiff-Appellant, v. Ivan E. DILSAVER, Defendant-Respondent.
    No. 8283.
    Springfield Court of Appeals. Missouri.
    Feb. 3, 1965.

      Arkley W. Frieze, Frieze & Crandall, Carthage, for plaintiff-appellant.
    J. Carrol Combs, Combs & Combs, Lamar, for defendant-respondent'
   HOGAN, Judge.

This is an appeal by the plaintiff from a judgment and decree in favor of the defendant, Ivan Dilsaver, in an action, primarily for an accounting and for contribution, involving an alleged partnership or joint venture of the parties in buying, feeding and selling livestock during the years 1952, 1953 and 1954. A referee has heard evidence adduced in support and in refutation of the charges and credits claimed by the respective parties, and his conclusions resolve ultimately into a finding upon accounting for the defendant and against the plaintiff in the sum of $1,202.50.

The partnership, joint venture, or business undertaking involved here is now defunct, at a considerable net loss. The plaintiff brought this action originally as an action at law, seeking a money judgment against the defendant as co-maker of a promissory note upon which plaintiff had paid a balance remaining due when the venture was finally wound up. The pleadings were later amended and numerous issues were raised by the amended pleadings; voluminous proof, including many exhibits, was presented. The trial of the case, if we count the filing of various motions and other formal matters, extended over a period of nearly eight years. As the case eventually developed, however, three principal issues were litigated and remain in controversy here: First, whether there was in fact a partnership or joint venture between the two parties, as those relationships are commonly understood; second, whether the defendant, as co-maker of several promissory notes executed to obtain money for the business, can be compelled to contribute toward the loss sustained and paid by the plaintiff; and finally, whether the plaintiff was properly charged with certain advances made by the defendant which have not been and cannot be repaid with common funds. With these points of controversy in mind, the facts may be generally stated.

Sometime in 1952, apparently during November, the plaintiff and defendant entered into an oral agreement to buy, feed and sell livestock. At the time, the plaintiff was engaged “in the funeral business” in Greenfield, Missouri, and the defendant lived with his wife and family on a nearby farm. The agreement between the two parties was oral and quite informal, and is one of the basic subjects of controversy between the parties. As the plaintiff recalled the agreement, “he [Mr. Dilsaver] come into my office down here at the funeral home and wanted to buy some cattle * * and we agreed fifty-fifty. * * * We agreed to borrow the money and buy these cattle. He would look after them and we would feed them and divide the profits, go 50-50 on them.” Whether there were profits or losses, “it was a 50-50 deal.” According to the defendant, the agreement was much more restricted; his position is that the plaintiff agreed to furnish all the money and he agreed to furnish his labor. The defendant testified that Mr. Allison had come to the Dilsaver home and had, without encouragement on the part of defendant, broached the subject of feeding and raising cattle as a joint undertaking. When Mr. Dilsaver advised the plaintiff that he had no money to invest, and Mrs. Dilsaver protested that “we just wasn’t financially able to swing a project of this size,” Mr. Allison agreed that “he [plaintiff] would furnish the money, and I’d [defendant] put up the work, furnish the labor.” The parties had agreed, Mr. Dil-saver said, that “the profits [would] be split between us if there [were] any profits,” but the defendant never agreed to pay any losses incurred in the undertaking. At one point, Mr. Dilsaver was asked if anything was said about his paying any money that might be owed at the end of the venture, and he answered: “No. He said all I could lose was the labor I would put into it.” The parties seem agreed that no writing was ever executed or signed and that their undertaking was for an indefinite period.

The parties did enter business dealing in livestock, particularly in cattle. That part of the association or venture which is material here began in the fall of 1952, and records produced by the appellant indicate that during the years 1952, 1953 and 1954 the parties acquired and sold cattle in substantial numbers. Their livestock was kept and fed at a number of places; some of the cattle, and apparently most of the calves produced, were kept and fed at the defendant’s farm. Part of the herd was maintained at two other locations near Greenfield, and part was kept as far away as Fairland, Oklahoma, some 100 miles distant.

The parties borrowed extensively to finance and maintain their operation. The plaintiff relied heavily upon the banking transactions of the two parties as evidence of the existence of a partnership, and he introduced a number of promissory notes, liability ledgers and other banking records. Upon the basis of these memoranda, as amplified and explained by oral evidence, the plaintiff maintained that the parties had in fact borrowed funds as general partners and had become jointly obligated on the notes which they made. The promissory notes introduced in evidence indicate that during the course of their operation, particularly in late 1952 and in 1953, the parties executed a number of promissory notes at the First National Bank of Golden City, Missouri, for sums ranging from $300.00 to $15,844.06, and others at another bank for sums totaling $7,330.68. Some of the notes were signed by both parties, some by the plaintiff alone, and some were simply signed “Allison and Dilsaver” by the plaintiff. The money which the parties borrowed was repaid from the proceeds of the business, except for the balance which the plaintiff paid. These promissory notes, in themselves, shed little light on the existence of a partnership or joint venture, save as they are explained and qualified by oral evidence, and the proof does not clearly distinguish those notes executed to obtain capital for investment and those executed simply to obtain money for operating expenses. A good many of the promissory notes bear unexplained notations, and some of them are marked simply “corn” or “feed” or “feed for cattle.” Others bear no marking. There is one note, however, which was executed by both the plaintiff and defendant on October 29, 1953, to the First National Bank of Golden City, Missouri, for $15,844.06; it represented a consolidation and renewal of two other loans and was secured by a chattel mortgage on cattle and hogs. It is clear to us that it was on this note that a balance of $10,432.71 remained due when the venture was finally liquidated in 1954. This balance was paid by the plaintiff and, as we have indicated, the original and principal purpose of this action was to secure contribution of one-half of this sum from the defendant.

The parties’ functions in the day-to-day operation of this venture or undertaking are not very fully developed. The plaintiff appears to have kept such records of the business as were kept, and although the parties maintained joint bank accounts at each of the banks with which they dealt, the plaintiff wrote all the checks and had control of these two accounts. Mr. Dilsaver testified that Mr. Allison “bought most of the feed” and that it was paid for “through the partnership account, this charge account.” It is inferable from the record that when the cattle were moved from one location to another the plaintiff decided where they were to be moved, although the defendant testified that “once or twice” he went with the plaintiff to rent pasture. Mr. Allison’s testimony, on the other hand, was that the management of the herd and the purchase of feed and renting of pasture was a matter which was attended to by “both of us, me part of it and both of us part of it.”

The business records kept by Mr. Allison indicate that cattle were bought at a number of different places, from various individuals or concerns in southwest Missouri. The record is silent as to whether these purchases were made by the parties together or individually, and reflects no consultation between the parties concerning the grade or type of stock which was to be purchased. There is some indication that on one occasion Mr. Allison engaged in a separate and individual purchase and sale of feed, the proceeds of which he credited to one of the joint accounts; there is uncon-tradicted proof that some of the defendant’s personal farming expenses were paid by Mr. Allison from the joint account, upon the defendant’s agreement to repay the sums expended. Mr. Dilsaver proved without substantial contradiction that he contributed a considerable amount of feed, minerals and insecticide from stores or supplies which he had on hand or purchased individually, and the record indicates that some of the venture’s feed was used by Mr. Dilsaver for individual purposes, that is, to feed to his own livestock.

When the defendant was asked who “made the decisions as to the sale of the cattle,” he answered that it “was more or less talked out between us, but it was really up to him [plaintiff], the final decision. It was his money.” However, on several occasions, the defendant loaded and transported the cattle to market. Ordinarily, the proceeds of any sale of livestock were remitted directly to the plaintiff, but on one occasion, when hogs were sold, the defendant received his check directly. Mr. Dil-saver remitted this amount directly to one of the banks for credit on one of the notes secured by a chattel mortgage on livestock.

It does not seem to be seriously disputed that the defendant and his wife made a substantial contribution of labor in feeding and caring for the livestock. Mr. Dilsaver’s testimony was that from "along in October or November” of 1952 until 1954, he fed and cared for the cattle and for the calves which were produced. He looked after the cattle on his own farm and made periodic trips to attend to those kept at two other locations near Greenfield; he “tried” to go to the location in Oklahoma at least once a month, although it was necessary to procure additional labor to look after the cattle in Oklahoma. He testified that he “looked after the sale” of the cattle. Mr. Dilsaver testified at some length to the expenditure of time, effort and labor otherwise involved on his part during the course of the venture, and while the plaintiff was of the opinion that Mr. Dilsaver had not furnished all the labor, as he had agreed, the referee has found as a fact that both the defendant and his wife contributed their labor and effort during the entire period involved. Other facts will be noted in the course of the opinion.

The first point for discussion is whether there was in fact a partnership or joint venture between the parties. The referee concluded as a matter of law that no partnership was formed between the plaintiff and defendant, and consequently that there was no partnership to which to account. We consider such a conclusion to be wholly unrealistic. Indeed, both parties seem to assume in this court that there was either a partnership or joint venture between the plaintiff and defendant; both of them argue their points in such terms. The two types of associated enterprise are, to be sure, very similar. A partnership is defined by statute simply as “an association of two or more persons to carry on as co-owners a business for profit,” Sect. 358.060 (l), and judicially as a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business and to divide the profits and bear the loss in certain proportions. Van Hoose v. Smith, 355 Mo. 799, 803, 198 S.W.2d 23, 26 [2]. A joint venture is defined as an association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge. Scott v. Kempland, Mo., 264 S.W.2d 349, 354 [1]; Fish v. Fish, Mo.App., 307 S.W.2d 46, 49 [2, 3]. Of the two kinds of business association, it is generally recognized that the joint venture is the more informal, and that a contract for a joint venture may be implied without any showing of a specific or formal agreement. Fish v. Fish, supra, 307 S.W.2d at 50, and cases cited note 5. It has been noted that the two forms of enterprise have many common characteristics, and that they are governed by similar, if not identical, rules of law. Shafer v. Southwestern Bell Telephone Co., Mo., 295 S.W.2d 109, 116 [13-15]. Where the participants in the association jointly purchase goods or other property in a particular instance for resale, with a view to dividing the profits arising from the transaction, as is the case here, it is admittedly difficult to distinguish between the two. Mechem, Elements of Partnership, Sect. 14, pp. 17-18 (2d ed., 1920).

Without again reciting the evidence or detailing the inferences possible upon the state of fact presented, we consider it obvious that the plaintiff and defendant entered into a joint venture for the purpose of purchasing and reselling livestock, with the intention that each would share equally in the anticipated profits. The fact that their agreement was oral, informal, and in many respects quite indefinite in no way militates against such a conclusion. Fish v. Fish, supra, 307 S.W.2d at 51, and cases cited notes 13 and 14.

It does not follow, however, that such a determination rules the plaintiff’s right to contribution, which is the primary matter he sought to have decided. Whether or not the defendant can be compelled to share in the net loss sustained by the business depends on the parties’ agreement. Both types of associated enterprise, partnerships and joint ventures, rest on contract, State ex rel. McCrory v. Bland, 355 Mo. 706, 711-712, 197 S.W.2d 669, 672 [3, 4], 168 A.L.R. 929; Temm v. Temm, 354 Mo. 814, 823, 191 S.W.2d 629, 633 [14], and the rights and liabilities of the partners or coventurers inter sese, though they are generally fixed or implied by law, are subject to modification according to the agreement and intention of the parties, so far as that can be ascertained. Sect. 358.180; Hidden v. Edwards, 313 Mo. 642, 661, 285 S.W. 462, 467 [4]; 30 Am.Jur., Joint Adventures, Sect. 34, pp. 961-962. The trial court has impliedly found that the defendant is not liable to contribution. The appellant vigorously challenges that determination on this appeal. It is our duty to review the trial court’s judgment upon both the law and the evidence, as in actions of an equitable nature, affirming the judgment unless it is clearly erroneous. If we find that it is, we are then to enter such judgment as may seem agreeable to law. Rule 73.01(d); Rule 83.13(c), V.A.M.R.; Hogan v. Krohn, Mo., 318 S.W.2d 163, 167 [1].

To rule the question of the defendant’s liability, it is necessary to restate, at the expense of some repetition, the proof bearing on this aspect of the case. The plaintiff’s position was that his agreement with the defendant created a general partnership. Mr. Allison was asked “ * * * what, if any, agreement in detail was entered into between you and the defendant in November of 1952,” and he answered: “He come into my office down here at the funeral home and wanted to buy some cattle, he thought the time was right and we agreed fifty-fifty.” His testimony then continued:

“Q. State if you will just in detail about what the substance of the agreement was. A. We agreed to borrow the money and buy these cattle. He would look after them and we would feed them and divide the profits, go 50-50 on them.
“Q. What agreement, if any, was there between you and the defendant about sharing any losses in the event there was a loss ? A. It was a 50-50 deal.
“Q. Tell the Referee about that. A. We agreed to divide the profits or losses 50-50.”

The plaintiff’s most direct evidence of the defendant’s liability was, of course, his evidence concerning the parties’ banking transactions. Our attention is directed and again recalled to one transaction in particular. When the plaintiff and defendant entered upon their joint venture (or at least the phase of it that is material here), they went to a bank to borrow money to purchase cattle. They executed one note for $2,500.00 and another for $14,310.06, the proceeds of which were used to buy cattle. Both notes were signed first by Mr. Dilsaver and then by Mr. Allison, without qualification. The larger note was secured by a chattel mortgage of cattle and “also all increase in above livestock during the life of this lien.” These notes were made on November 24, 1952, and were due September 1, 1953. On October 29, 1953, these loans were consolidated and renewed for six months by the execution of a new note for $15,844.06, similarly signed and secured.

The parties made many other loans during the life of the venture; Mr. Allison introduced some sixteen promissory notes (some of which were renewal notes) made, he said, to secure loans for the business. As these notes were explained and qualified by oral testimony, they indicate that between November 24, 1952, and June 18, 1954, the parties borrowed roughly $30,-000.00 from the two banks with which they dealt, and that, except for the balance of $10,432.71, all the money which they borrowed was repaid, with interest, from their joint bank accounts or directly from the proceeds of the business. As we have indicated, it is not at all clear what portion of this money could precisely be considered as capital invested and what part could be considered as having been procured to defray expenses, but it is clear that the balance due and owing when all was said and done, so to speak, represents a sum due on this first transaction, the proceeds of which, Mr. Allison said, were used to buy cattle. This balance due was paid personally by Mr. Allison on December 17, 1954.

Other evidence presented by the plaintiff tends strongly to show that the parties operated their business jointly and that they regarded it as a joint undertaking. Though Mr. Allison seems to have had control of their bank accounts, they were joint bank accounts, and the record indicates that for Federal tax purposes the parties regarded and represented themselves as partners. It is apparent that there was some consultation between the plaintiff and defendant before the sales of livestock were made and that the defendant arranged some of these sales; on one occasion, Mr. Dilsaver received his part of the proceeds of a sale directly. The parties’ business was so informally operated, however, that, upon the record before us, we can ascertain little or nothing of their implied agreement from their conduct.

Contrasting his position as to the parties’ agreement, the defendant said that the borrowing transactions were not contemplated by the original agreement; he testified in effect that there was originally no discussion concerning borrowing at the time he and Mr. Allison agreed upon the undertaking in issue. He emphasizes that because of the disparity between his economic condition and that of the plaintiff, he was extremely reluctant to enter upon the cattle-buying transaction, and he testified that at the time he and the plaintiff began their undertaking, “I told him I didn’t have any money to invest in such a project as that. I just moved down here from Nebraska and I had invested everything I had in machinery and livestock of my own and land.” His original reluctance to enter into the venture was overcome only when Mr. Allison gave assurance that he would finance the venture. Mr. Dilsaver recalled the plaintiff’s remarks as having been: “I’m putting up the money. I’m backing you. You won’t have to worry about the money, I can get it.”

On cross-examination, the defendant was asked:

“Q. What was the agreement as to the capital? A. Well he was to furnish the money. I was to do the work and all I was to be out was the labor. * * *
“Q. Was anything said about your paying any money that might be owed at the end of the arrangement? A. No. He said all I could lose was the labor I would put into it.” In short, the defendant’s characterization of his agreement was that Mr. Allison was to contribute the money and he was to contribute the labor, and that he had been repeatedly assured that he would be expected to bear no losses personally if any were sustained. To a certain degree, Mr. Dil-saver was corroborated in this testimony by his wife and by a neighbor, who purportedly heard conversations between the parties at the Dilsaver farm. The defendant did not deny signing the three notes in question, but maintained that he had done so only because the lending officer had insisted that it was necessary in order to bind the joint venture or partnership to the terms of the chattel mortgage.

The gist of the plaintiff's argument is then that the defendant is liable to contribute half the balance due and owing when -the venture was finally closed out, because -the loans were made as a partnership transaction; and as a joint venturer or co-partner, the defendant is bound by his agreement to share equally in the losses incurred by the venture. The defendant, on the other hand, insists that he and Allison had specifically agreed that the defendant was not to be personally bound to repay any losses, in the event the joint venture itself could not repay them, and that he is not therefore liable to contribute.

Various considerations may be set to one side. On the face of the transaction, the execution of the notes by the plaintiff .and defendant doubtless created a joint obligation. 17 Mo.L.R. 176, 177; Mechem, op. cit., Sect. 308, pp. 272-273. As a matter of general law, there may be some presumption that the co-makers of a promissory note, in the absence of any evidence to the •contrary, are liable in equal amounts. 11 Am.Jur.2d, Bills and Notes, Sect. 588, p. 655. It must also be borne in mind that this action was not brought by the payee or a holder of the notes in due course. This was an equitable action for contribution, and we are of the view it was competent for the ■defendant to show by parol what his true obligation was. Frew v. Scoular, 101 Neb. 131, 162 N.W. 496, 498, L.R.A.1917F, 1065; 11 Am.Jur.2d, Bills and Notes, Sect. 588, pp. 655-656; 12 Am.Jur .2d, Bills and Notes, Sect. 1288, pp. 326-327. In any event, since no objection was made by the plaintiff to the defendant’s parol explanation of his liability, the plaintiff could not now complain. Briegel v. Terry, Mo.App., 226 S.W. 624, 625 [1].

More directly to the point, while it is true that an agreement to carry on a joint venture ordinarily implies a duty to share in the losses, if any, incurred by the venture, Gales v. Weldon, Mo., 282 S.W.2d 522, 527 [3]; Fish v. Fish, supra, 307 S.W.2d 46, 49 [2], this does not compel the further inference that co-venturers are, at all events, under a duty to share all monetary losses equally. There is authority for the proposition that the loss-sharing agreement necessarily implied in a joint venture is satisfied if there is a monetary loss to one coventurer and a loss of time or labor or property to the other. And while there are divergent views concerning the proper apportionment of losses when one co-venturer or partner contributes only his skill or services as against the other’s money contribution, and there is no controlling agreement on the subject, many authorities hold that in such a case neither co-venturer can have contribution from the other. Kovacik v. Reed, 49 Cal.2d 166, 315 P.2d 314, 316 [2]; Anno., L.R.A.1917E, 877. It is unnecessary to decide the case on the basis of any implied agreement, however, for certainly it is competent for the joint venturers to determine by agreement the basis upon which losses shall be borne as between themselves, and they may agree to limit or eliminate the liability of particular co-venturers to share losses. When this is done, it then becomes the agreement, and not some fixed rule of law, which determines the co-venturers’ respective liabilities to each other.

In the case at hand, the referee has found as a fact that the defendant was to lose only his labor, if there was a loss on the venture, and we take this as an adjudication that the defendant was not liable to contribute toward payment of the $10,432-71. Upon the record presented, we cannot accurately assess the parties’ intentions from their conduct, and thus ascertain the terms of any implied agreement which they may have had. There is not enough evidence of their respective duties and functions in the record for us to say whether their original understanding may have been modified by their subsequent course of dealing. We are remitted to their original oral contract to ascertain their liabilities as between themselves; and, while there is a straightforward conflict as to its terms, the resolution of this conflict was simply a matter for the trier of fact. We cannot say his finding was clearly erroneous.

The final point for our consideration is whether the trial court properly charged certain sums against the parties as individual charges and credits. The judgment appealed from takes into consideration the following items: 1. The sum of $1,-936.80, representing materials and services furnished by the defendant. This amount was allowed as a charge against the plaintiff individually. This charge was offset by holding the defendant personally responsible for: 2. The sum of $188.20, representing payment for the defendant’s own threshing and bulldozing paid from joint funds and not repaid by the defendant; 3. $495.-00, representing feed furnished by the plaintiff but used by the defendant to feed his own calves; and 4. $51.10, representing labor furnished by the plaintiff. Other labor was apparently hired and paid for by the firm, hut its value was not proved. By subtracting items 2, 3 and 4 from the first item, the trial court concluded that the plaintiff was indebted to the defendant in the sum of $1,202.50. The arithmetical calculations of the amounts involved are in fact supported by substantial evidence, and we therefore accept the amounts as calculated. Bass v. Daetwyler, Mo.App., 305 S.W.2d 339, 343 [6, 7]. What we review is the allocation of these items as charges against the individual co-venturers.

The plaintiff was held responsible for the sum of $1,936.80, representing a contribution of feed, medicine, insecticides, and labor and machine hire in the processing of ensilage. We conclude that this amount should not have been charged against the plaintiff individually, although we agree that ordinarily the furnishing of such materials would constitute an advance properly chargeable against the joint venture. Bradford v. Bradford, Tex.Civ.App., 172 S.W.2d 365, 367 [1-3]. The defendant’s position throughout the case, however, was that he was required to make no money contribution of any sort to the joint venture. His testimony concerning Mr. Allison’s obligation to repay these advances was that “nothing was .ever said about it.” While a partner or co-venturer may, in certain instances, properly charge the business itself with advances made for expenses, Bass v. Daetwyler, supra, 305 S.W.2d at 342-343 [4, 5], he does not, in the absence of an agreement, thereby become a creditor of the individual co-venturers. 68 C.J.S. Partnership § 81, p. 521. This amount was erroneously charged against the plaintiff.

On the other hand, we think the defendant is bound to repay the sum of $51.-10, representing labor which he was obligated to furnish, and the sums of $188.20 and $495.00, representing the venture’s money and feed, which he individually used. See 68 C.J.S. Partnership § 437e, p. 983. These amounts represent money contributions made by the plaintiff, the loss of which he has borne and which should be repaid to him. Further, since some of the substantial issues have been found for the plaintiff and some for the defendant, we consider it equitable to apportion the costs one-half to the plaintiff, and one-half to the defendant. See Bass v. Daetwyler, supra, 305 S.W.2d at 345 [16, 17].

The judgment of the trial court is therefore set aside and the cause is herewith remanded with directions to enter judgment for the plaintiff and against the defendant in the sum of $734.30, with interest thereon at the rate of six per cent per annum from June 7, 1963, when the judgment was rendered. Costs are to he taxed one-half to each party.

RUARK, P. J., and STONE, J., concur.

      . All references to statutes and rules are to RSMo. (1959), V.A.M.S. and V.A.M.R., unless otherwise noted.

        . Though the applicable law may have since been modified by the amendment, in 1961, of former Sect. 358.150 by Laws of 1961, page 259, par. 1, now codified as Sect. 358.150, RSMo. (Supp.1963).

      . Martter v. Byers, 75 Cal.App.2d 375, 171 P.2d 101, 106 [5-7]; Shoemake v. Davis, 146 Kan. 909, 73 P.2d 1043, 1045; Summers v. Hoffman, 341 Mich. 686, 69 N.W.2d 198, 201-202 [3-5], 48 A.L.R.2d 1033; 30 Am.Jur., Joint Adventures, Sect 11, p. 947.

      . Harrington v. Sorelle, 10 Cir., 313 F.2d 10, 12 [1]; Albina Engine and Machine Works, Inc. v. Abel, 10 Cir., 305 F.2d 77, 82 [5]; Las Vegas Machine and Engineering Works v. Roemisch, 67 Nev. 1, 213 P.2d 319, 322-323 [4-7]; Summers v. Hoffman, supra, 69 N.W.2d at 201-202 [3-5]; 68 C.J.S. Partnership § 96, p. 537.


author: SPERRY, Commissioner.

text:
    Leo PFAUTH, Plaintiff-Appellant, v. Opal PFAUTH, Defendant-Respondent.
    No. 24044.
    Kansas City Court of Appeals. Missouri.
    Feb. 1, 1965.
    Donald B. Clark, Campbell & Clark, Kansas City, for appellant.
    Don E. Black, Chillicothe, for respondent.
   SPERRY, Commissioner.

Plaintiff, Leo Pfauth, filed motion to modify a decree granting custody of his child, Patricia, to her mother, Opal Pfauth. From the action of the court denying the motion and increasing the amount of support money to be paid, plaintiff appeals.

The parties were husband and wife until divorced by decree entered June 25, 1951. The record is skimpy but it appears that, at that time, the parties lived in Kansas City and Patricia was but a few months of age. Plaintiff obtained a decree of divorce upon his uncontested petition, but custody of the child was granted to defendant, together with an allowance of $10.00 per week for her support of the child. The child lived with defendant, at Chillicothe, Missouri, from that time forward until the hearing on this motion was held, on September 20, 1963.

This is a case involving modification of an existing order of custody, made twelve years prior to the date of this hearing. In deciding the issues herein, we must determine whether there are changes in circumstances which have occurred since the original order was made, in 1951, which require a change in custody. A provision as to child custody, once made, becomes as conclusive as any other order or decree, and can only he modified on a showing of subsequently changed conditions; but, while proof of a change in condition is a prerequisite to the modification of a decree, such proof does not necessarily require a modification of a decree, and no modification will be made unless the welfare of the child itself requires a change in custody. Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 196, 197. While we will review the entire evidence and make our own decision thereon, we will bear in mind that the trial judge saw and observed the witnesses and heard their testimony, which was verbal, and to some extent, conflicting.

The transcript gives us no information regarding the allegations of the divorce petition, or the grounds upon which the decree was granted. We infer, from the record, that the parties were not in good financial condition because, at that time, they were living in an old school bus which, later, was taken to Chillicothe, parked on an undesirable rented lot and has, ever since, been occupied by defendant and Patricia. Plaintiff, during these twelve years, made but little effort to see his daughter and sent defendant small sums, at irregular intervals, for her support.

The record indicates that plaintiff had been twice married prior to the marriage to defendant; that he has two children by one of these marriages but that they do not live with him. He has been married once since this divorce and has a child by that marriage. His moral conduct prior to the divorce was not good, and defendant has a child, younger than Patricia, born out of wedlock, who lives with defendant in the converted bus. Defendant was receiving aid for dependant children which, together with what plaintiff contributed, constituted her sole income at the time of the hearing. However, she testified to the effect that, prior to 1959, she had worked at a laundry, and at other employment, to support herself and Patricia. She had a gall bladder operation which disabled her for a time, but her physical condition at the time of the hearing was not shown.

Plaintiff has been admitted to the practice of medicine, as an Osteopath, at Lawson, a town of about 800 population, near Kansas City. He is purchasing a modern six room home there, and is also purchasing professional equipment and an automobile, all of which is encumbered.

The evidence fails to show any significant change in defendant’s physical or financial position since the divorce. However, she now has another child. Plaintiff, presumably, is in much better position, financially, than he was in 1951, but Patricia is not shown to have benefitted thereby. She was thirteen (13) years of age, poorly housed and poorly clothed, at the time of the hearing. She has never known her father and has no occasion to hold him in high esteem, although he now professes to be able and willing to assume her custody and support. The court interviewed Patricia privately, and made an order denying the custody change; ordered plaintiff to pay $15.00 per week instead of $10.00; and he ordered that if defendant did not, within a reasonable time, obtain other and better housing, and secure employment, a further hearing on this matter might be held before the court, at which time, further orders could be made.

In view of the state of the record and the rather discouraging general situation that is disclosed therein, we are loath to disturb the trial court’s judgment. We think he has dealt with the problem conscientiously and, probably, as satisfactorily as a condition of this kind may be dealt with by the courts.

The decree of the court is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

BROADDUS, J., not participating.


author:
BRADY, Commissioner.
      PER CURIAM.

text:
    Mike MUSIELAK, Plaintiff-Appellant, v. INTERNATIONAL SHOE COMPANY, a Corporation, Defendant-Respondent.
    No. 31716.
    St. Louis Court of Appeals. Missouri.
    Jan. 19, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 12, 1965.
    As Modified Feb. 12, 1965.
    Motion for Rehearing or for Transfer to Supreme Court on Modified Opinion of Feb. 12, 1965 Denied March 18, 1965.

      John J. Relies, Clayton, William L. Mason, Jr., Galena, for plaintiff-appellant.
    Garstang, Mueller, Riethmann & Soeb-bing, Louis W. Riethmann, St. Louis, for defendant-respondent.
   BRADY, Commissioner.

The appellant, hereinafter referred to as the plaintiff, brought an action for damages against the respondent, hereinafter referred to as the defendant, for personal injuries. Upon jury trial the plaintiff received a verdict in the amount of $7,500.00. The trial court thereafter sustained the defendant’s motion for judgment in accordance with its motion for directed verdict and entered judgment for the defendant and, providing for the event that action should be reversed on appeal, also sustained the defendant’s alternative motion for a new trial. The basis upon which the trial court took each of these-actions will appear later herein. The evidence will be stated in the light most favor-' able to the plaintiff.

The plaintiff did janitor work for the Aetna Window Cleaning Company which was engaged in cleaning windows and other facilities in residences' and factories including certain factories operated by the defendant. Such work was done for the defendant under a contract with Aetna whereby Aetna’s men performed any general janitorial services they were directed by the defendant’s men to perform. Defendant also maintained a janitorial department, and the employees often worked along-with, the plaintiff and other Aetna men. Aetna was owned and operated by Mr. Kronnmer to whom the plaintiff reported each morning to be told exactly where he was supposed to go for work. On the days when he was to work at the defendant’s factories and would be there for three or four days, he would go directly from his home to the factory without stopping off at Aetna. During the week before Christmas of 1954 the plaintiff was directed by Kron-nmer to go to defendant’s building at 1504 or 1509 Washington Avenue in the City of St. Louis where defendant had an office building and warehouse. There he reported to a Mr. Mayes and to a Mr. Art Kuhlengel. The latter was a janitorial foreman for defendant and as a rule took the plaintiff to the particular place in the building where plaintiff was to work and directed him as to what was to be done. On December 23, 1954, Kuhlengel told plaintiff that he was to come in the next morning to “ * * * wash — scrub a floor in the cafeteria.” The purpose of this work was to remove old spots of paint from the cafeteria floor. A new tile floor, a part of the remodeling of the entire cafeteria, was to be.4aid. Kuhlengel told the plaintiff to bring the oldest shoes he had " * * * because we would be wading around in a lot of water the next morning.” He gave plaintiff no further information as to what kind of material they would be working .with, but the plaintiff knew that some kind of solution other than water was to be used. On Saturday, December 24, in the company of another Aetna employee who was to work with him, the plaintiff came to the International Shoe building and went to the engine room where he found still another Aetna employee. These men went to the cafeteria where they first moved the furniture over to one side of the room. Kuhlengel was present and also helped with the furniture moving. When this was finished, Kuhlengel mixed two batches of a solution at the cafeteria in a ten-gallon can. The evidence is that this solution consisted of a powder which was taken from an unmarked can which had been stored in the defendant’s engine room. This powder was mixed with water to form the solution. The only direct evidence in the trial as to who supplied this powder, later identified as caustic soda and lye, comes from the plaintiff. On direct examination he testified that Aetna furnished the materials that he worked with or used at defendant’s plant whenever he was called to work there and that this included things like “ * * * soap and mops and buckets, etc.” On another occasion in his testimony plaintiff stated that the solution was “ * * * brought in from Aetna Window Cleaning” and that he thought that Kronnmer had sent this material over to defendant’s factory. On cross-examination the plaintiff was asked this question * * * Aetna apparently had sent that over to International Shoe Company, is that correct?” Plaintiff answered, “Well, they probably had, yes, sir.”

The plaintiff had never worked with such a solution before and was wearing canvas topped crepe soled shoes. The defendant furnished one pair of boots and these were used by one of plaintiff’s co-workers. The solution was put on the floor and mopped. At about 11 o’clock in the morning the plaintiff’s feet started to burn and sting. He left the cafeteria room and Kuhlengel was notified. When Kuhlengel appeared, the plaintiff asked him what was in the solution and was given the reply “ * * * caustic soda and lye.” At the latter’s instructions the plaintiff removed his shoes and socks and when he did so, the skin on his right foot came off as the sock was removed. Kuhlengel suggested that the plaintiff soak his feet in clear water, but the plaintiff was in such pain that he could not do so. However, he did attempt to wash his feet with a rag. The plaintiff was directed by Kuhlengel to report back to Aetna and experienced great difficulty walking back to Aetna, a distance of some four blocks from the defendant’s plant. When he arrived at Aetna and exhibited his feet, the plaintiff was taken to a Dr. Costa. On the following Monday or Tuesday plaintiff again reported for work at the engine room at defendant’s plant, but after a few hours’ work he was again taken to see Dr. Costa. It does not clearly appear whether Dr. Costa was defendant’s regular doctor, if he occupied that position for Aetna, or if he was unconnected with either. He was not plaintiff’s physician. Dr. Costa arranged for plaintiff to be admitted to the hospital where he remained for twenty-three days undergoing treatment for his feet. After being released from the hospital, the plaintiff saw Dr. Costa some twenty times.

With reference to whether the plaintiff was warned, the defendant offered the testimony of its employee Kuhlengel and of Robinson, another Aetna employee. Both made positive statements that plaintiff was warned. The plaintiff’s evidence as to this issue comes from his own testimony. On direct examination the plaintiff testified that Kuhlengel did not tell the plaintiff or the other Aetna employees what he was mixing nor did he tell them it would burn and not to get it on their skin nor that it was a caustic solution. However, on cross-examination the plaintiff stated that he could not remember whether Kuhlengel had warned him that it was a caustic solution or one likely to burn him.

The defendant was a major employer as that term is used in the Missouri Workmen’s Compensation Act and was operating under and subject to the terms of said act on the date of the occurrence in evidence.

Defendant’s offered Instruction No. A consists of two paragraphs, the first of which is an abstract statement of Section 287.040(1), RSMo 1959, V.A.M.S. In the second paragraph it was hypothesized the defendant contracted with Aetna for the latter to do work on the defendant’s premises “ * * * which was an operation of the usual business carried on there by defendant . International Shoe Company”; that Aetna was an independent contractor in doing this work; that plaintiff was injured by reason of an accident “ * * arising out of and in the course of his employment * * * ” on defendant’s premises-while “ * * * mopping and cleaning a. floor, if you so find”; and that “ * * *' the mopping and cleaning of said floor was-an operation of and in the usual course of the business of the International Shoe Company carried on on its premises, if you so> find.” Based upon these findings the instruction informed the jury that the plaintiff could not recover and their verdict should be for the defendant.

Civil Rule 83.05(a), V.A.M.R. requires-the defendant to set forth either in full or the questioned portion of plaintiff’s verdict-directing instruction which defendant contends was erroneously given. This the defendant has failed to do. However, reference to the transcript discloses that plaintiff’s verdict-directing Instruction No. I was submitted upon the theory of defendant’s failure to warn the plaintiff. In those-portions pertinent to the issues raised on. this appeal it was hypothesized that defendant through its agents and servants provided plaintiff “ * * * with a solution-containing caustic soda and lye, if so, to-use in scrubbing said floors * * * ”; that defendant “ * * * knew, or in the exercise of ordinary care could have known of' the said hazardous and dangerous nature * * * ” of the solution; that defendant “ * * * then and there failed to exercise ordinary care to warn plaintiff of the said hazardous and dangerous nature, if any, of the said solution * * * ”; that defendant was thereby negligent; that as a direct result of such negligence plaintiff had no knowledge of the dangerous and hazardous nature of said solution and therefore undertook to use it and walk in it; and that the plaintiff thereby sustained injuries. The decision reached herein renders unnecessary any detailed explanation of Instruction No. 2 which was based upon the theory that the defendant owed plaintiff a duty to supply him with heavy boots or shoes.

The Workmen’s Compensation Act of this state is not cumulative or supplemental hut is wholly substitutional and if applicable, constitutes the plaintiff’s exclusive remedy. Cleveland v. Laclede-Christy Clay Products Co., Mo.App., 113 S.W.2d 1065; Cummings v. Union Quarry & Construction Co., 231 Mo.App. 1224, 87 S.W.2d 1039. The defense of the applicability of the Workmen’s Compensation Act was an affirmative one and the burden of the proof as to such issue is upon the one asserting it. Mo.Digest, Workmen’s Compensation, O^mO.

The trial court based its action on defendant’s motion on two grounds: first, that plaintiff was a loaned or borrowed employee; and second, that plaintiff was a statutory employee. The defendant seeks to sustain trial court’s ruling that plaintiff was a loaned or borrowed employee by citing Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628. In Ellegood this court, citing Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, held that when the plaintiff in that case responded to the orders and direction of his regular employer, Curtis, to perform work for Brashear, he became the servant, pro hac vice, of Brashear while engaged in said work, if the facts demonstrated: * * * (a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special master pursuant to an express or implied contract so to do; (c) power of the special employee to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.” (162 S.W.2d l.c. 633.) The defendant insists that Ellegood compels a decision in its favor on the basis of the application of the borrowed servant doctrine. We cannot agree. The distinction between the line of cases represented by Ellegood, supra, and the instant case is to be found in the nature of the contract involved in each case. In Ellegood, the plaintiff’s regular employer, Curtis, entered into an agreement with the alleged special employer as stated in the opinion “ * * * whereby the services of plaintiff and the truck were [to be] furnished * * * ” to the special employer for a consideration. In the instant case the plaintiff’s regular employer, Aetna, did not contract with the company for the services of the plaintiff. The contract was for Aetna’s employees to do janitorial work and which of its employees did the work was completely immaterial. In Ellegood, supra, the plaintiff was to do a specific job; i. e., drive a truck to Indiana, while in the instant case the plaintiff was one of several Aetna employees who were to do whatever janitorial work needed to be done pursuant to the contract between Aetna and the company. In its essence the subject of the contract in Ellegood was for a specified man for a specified job while the subject of the contract in the instant case was janitorial work. Thus, in the instant case the plaintiff was injured while upon defendant’s premises doing janitorial work as called for by the contract between Aetna and defendant. Admittedly Aetna’s employees were to be directed in the doing of this work by the defendant’s employees, but when they did this work, they were engaged upon Aetna’s work; the janitorial services called for by Aetna’s contract with defendant. Thus, the plaintiff never engaged upon any * * * work of and for the special master pursuant to an express or implied contract so to do.” He was engaged upon the work of his regular employer Aetna and as such does not come within the purview of the borrowed servant doctrine.

We pass next to defendant’s contention the plaintiff was a statutory employee. Section 287.040(1), supra, reads as follows: “Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed oil or about the premises of the employer while doing work which is in the usual course of his business.” In the final analysis whether or not the plaintiff is to he considered a statutory employee under the provisions of this section presents two questions: first, what was the scope of the usual business of the defendant carried on at the Washington Avenue plant; secondly, was the work being performed by the plaintiff at the time of his injury within the scope of that work. See Kirch v. Armco Steel Corp., 8 Cir., 274 F.2d 120. The rule is that no test can be laid down to determine what work is within the scope of the operation of the usual business which is carried on at a particular place but that each case must be determined upon its own facts. Viselli v. Missouri Theatre Bldg. Corp., Mo., 234 S.W.2d 563. The defendant admitted that it carried on a shoe manufacturing business at the Washington Avenue address. In Wooten v. Youthcraft Mfg. Co., Mo., 312 S.W.2d 1 at [1], page 3, it was held that “ * * * courts may take judicial notice of the fact that janitorial work has become a business in itself * * There is no evidence that the defendant was in the janitorial business, an activity which the Supreme Court has held we may judicially notice constitutes a separate business, and an activity which normally encompasses the work the plaintiff was doing when he was injured. However, we are not to be understood as placing our decision on the grounds that janitorial services constitute a separate act of business in which the defendant under the pleadings admittedly did not engage. The question is whether the defendant bore its burden to prove the plaintiff was injured while doing work which was within the scope of the usual business defendant carried on at the Washington Avenue plant. The evidence is that at the time the plaintiff was engaged in mopping the floor of this cafeteria he was doing so with an admittedly out of the ordinary floor cleaning or mopping solution, a solution that was caustic and dangerous. Moreover, the uncontradicted evidence is that at the time plaintiff was injured he was engaged in mopping the floor with this caustic mixture for the purpose of removing paint off the floor so that a new tile floor could be laid as a part of the remodeling of the entire cafeteria. There is no evidence that defendant usually or customarily used such a solution to clean -its floors or that it usually or customarily did the work this floor cleaning was an integral part of; i. e., laying a new floor and remodeling the cafeteria. To sustain the trial court’s ruling on defendant’s motion would require us to rule as a matter of law that it was in the usual course of defendant’s business to use a caustic chemical mixture which could cause injury to those using it to remove the paint off a floor of a cafeteria for the purpose of preparing that floor for the laying of tile which in turn was a part of a complete remodeling of the cafeteria. In the instant case the transcript does not disclose a set of facts which illustrates the work plaintiff was doing was something which was customarily carried on by defendant but in fact shows this work to have been incidental, auxiliary and ancillary to defendant’s usual business. Wooten v. Youthcraft Mfg. Co., supra; Eckmayer v. Newport, Mo.App., 267 S.W.2d 379. We hold the defendant did not sustain his burden of proving the work in which the plaintiff was engaged when he was injured was such that he must be relegated to recovery, if at all, under the provisions of the Workmen’s Compensation Act of this state.

As stated earlier herein, defendant's offered Instruction No. A consisted of an abstract statement of § 287.040(1), supra, coupled with a paragraph which contained an hypothesization requiring the jury to find, among other things, that the work plaintiff was doing when he was injured was in the usual course of defendant’s business. We can easily conceive of testimony which would allow such a submission and do not rule that a factual situation which would allow the jury to find the work plaintiff was doing to have been in the usual course of defendant’s business could not exist. We do hold that this transcript does not disclose facts upon which the jury could reasonably base such a finding. Accordingly, the trial court acted correctly in the first instance when it refused to give this instruction.

Having sustained the plaintiff on the two points above ruled, we would normally proceed to remand this cause to the trial court with directions to reinstate the jury verdict. However, the defendant is not bound by the specific ground the trial court named when it sustained the motion for new trial but may also urge in support of that ruling any other points properly preserved in the motion for new trial and if they are valid, the order granting a new trial is to be affirmed. Williams v. Kaestner, Mo.App., 332 S.W.2d 21. Cognizant of that fact the defendant in its brief advances other grounds for sustaining the trial court’s ruling. Defendant contends it was entitled to a directed verdict because the evidence shows the caustic chemicals to have been the property of Aetna and therefore there was no duty placed upon the defendant to warn the plaintiff. In the alternative defendant contends the trial court was correct in granting a new trial for the reason that the evidence was insufficient to justify the submission of plaintiff’s case upon verdict-directing instructions.

We cannot agree that the fact that Aetna supplied the chemical used to make this caustic solution relieves defendant of any duties he might have to the plaintiff so as to entitle the defendant to a directed verdict. This is not a case where the owner failed to exercise any control over the dangerous instrumentality. In the instant case the .inert chemical did belong to Aetna, but the defendant’s agent Kuhlengel activated it by mixing it with water to form the solution which injured the plaintiff. Moreover, Kuhlengel directed that this solution be iised by the plaintiff. Under these circumstances the defendant cánnot now maintain that, as a ináttér of law, he was relieved of any liability to plaintiff because the chemical its agent Kuhlengel used belonged to Aetna.

The defendant’s alternative contention has merit. Instruction No. 1 hypothesized that the defendant “ * * * then and there failed to exercise ordinary care to warn plaintiff of the said hazardous and dangerous nature, if any, of the said solution * * This was an essential element of the plaintiff’s case. Marsanick v. Luechtefeld, Mo.App., 157 S.W.2d 537, 1. c. 543. There was no evidence offered by the plaintiff to support the submission of this issue to the jury. The defendant’s evidence was exactly to the contrary and there are no permissible inferences to be drawn therefrom which would justify submission of this issue. On direct examination the plaintiff testified that he was not warned. He was confronted with his statements made upon deposition wherein he had testified that he was warned. Faced with this apparent contradiction the appellant then admitted he did not know whether he was-warned or not, the occurrence having taken place so long ago that he could not remember. It is elementary that such testimony does not prove or disprove whether plaintiff was warned. Under such circumstances Instruction No. 1 was erroneously given.

As stated peviously, there was a. general verdict returned in this case. Under such circumstances it is impossible to know whether the jury found in favor of the plaintiff upon the submission made in Instruction No. 1 or whether it made such finding upon the submission made in Instruction No. 2. Since we have found that Instruction No. 1 was erroneously given,, it follows that the trial court correctly awarded the defendant a new trial because it may have been that the jury founded their verdict upon that instruction. The judgment in this case awarding a' new trial to the defendant should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is affirmed.

RUDDY, P. J., WOLFE, J., and SAMUEL E. SEMPLE, Special Judge, concur.

ANDERSON, J., not participating.