author: PHILLIPS, Justice.

text:
    John D. THOMAS, Appellant, v. David A. BELL, Appellee.
    No. 11335.
    Court of Civil Appeals of Texas. Austin.
    Nov. 10, 1965.
    Rehearing Denied Dec. 1, 1965.
    Vernon L. Smith, Waco, for appellant.
    Neil E. Clinkenbeard, Killeen, for appel-lee.
   PHILLIPS, Justice.

This is an appeal from an order of the District Court of Bell County overruling appellant’s motion to quash a writ of garnishment issued by the court. The writ was served on the First State Bank of Killeen, Texas. The Bank answered and appellant intervened and filed the abovementioned motion to quash.

Upon hearing the court overruled the motion and appellant has appealed to this Court.

We affirm the judgment of the trial court.

Appellant and appellee, as well as another not involved here, had been partners in an engineering firm and this partnership was dissolved voluntarily by certain articles of dissolution. Thereafter, appellee brought suit against appellant alleging conversion of property belonging to appellee; that appellant willfully and maliciously converted with the intent to injure the appellee. The jury so found and a money judgment was entered against appellant for the value of the property on June 3, 1963.

On February 5, 1964, appellant was discharged as a bankrupt in Federal Court.

Appellant maintains here that because of the discharge in bankruptcy, the above-mentioned judgment has also been discharged. That while 11 United States Code Annotated, Section 17, sub. a (2), of the Bankruptcy Act exempts certain debts and judgments from discharge under said act “for willful and malicious injuries to the person or property of another,” appellee cannot claim the benefit of this exemption even though the District Court of Bell County rendered judgment upon jury findings that appellant had converted appellee’s property willfully and maliciously with an intent to injure appellee. Appellant bases this contention on an opinion of this Court styled Culp v. Robey, Tex.Civ.App., 294 S.W. 647, reversed and remanded by the Supreme Court in 299 S.W. 846. Appellant cites our opinion in Culp for the proposition that a partner cannot convert partnership property where the property alleged to have been converted came rightfully into the hands of the partner subsequently charged with conversion. From this, appellant argues since the property found to have been willfully and maliciously converted by the abovementioned judgment of the District Court was partnership property which came rightfully into the hands of appellant, the rule announced in Culp applies.

We cannot agree with this contention. There is no showing here that partnership property was involved in the suit in the District Court. From the record before us the judgment of the District Court was based upon the willful and malicious conversion of plaintiffs (appellee’s) property. The court correctly overruled the appellant’s motion to quash the writ of garnishment based upon this judgment. See In re Green, 7 Cir., 87 F.2d 951, 109 A.L.R. 1188. Also, In re Frazzetta, D.C., 1 F.Supp. 122.

We affirm the judgment of the trial court.

Affirmed.

ARCHER, C. J., not participating.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    In re ESTATE of Isaac T. BIERMAN, Deceased. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Claimant and Petitioner-Appellant, v. Leonard L. BIERMAN et al., Executors-Respondents.
    No. 50916.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Rehearing Denied Dec. 13, 1965.
    Francis L. Kenney, Jr., Bernard A. Rein-ert, and Kenney, Reinert & Hespen, St. Louis, for appellant.
    Karol A. Korngold, St. Louis, for respondents, Leonard L. Bjerman and Ruth L. Kalmon, executors of estate of Isaac Bier-man, Deed.
   WELBORN, Commissioner.

The St. Louis County Probate Court issued letters testamentary in the Estate of Isaac Bierman on September 9, 1960. Publication of notice of letters concluded October 14, 1960. On May 22, 1963, Hartford Accident and Indemnity Company filed in the St. Louis County Probate Court a claim in the amount of $1,672.29 against Bierman’s estate, but this claim was not served on the coexecutors. On July 5, 1963, Hartford filed its “Supplemental Claim” in the same amount and copies thereof were served on the coexecutors on July 10 and 14, 1963.

The executors moved to dismiss the claim in the Probate Court on the grounds that it had not been filed within the time permitted by law for the filing of claims and that it had not been properly served on the executors. The Probate Court sustained the motion, whereupon the claimant took an appeal to the St. Louis County Circuit Court. There the executors moved to dismiss the claim on the grounds that the court did not have jurisdiction for the reasons asserted in the Probate Court. The court sustained the motion and after its motion for a new trial had been overruled, the claimant appealed to this court.

Appellant predicates the jurisdiction of this court upon the premise that the construction of the Constitution of the United States and the construction of the Constitution of the State of Missouri are involved within the meaning of § 3, Article V, Constitution of Missouri, 1945, V.A.M.S. Although our jurisdiction has not been questioned, we must nevertheless satisfy ourselves that the case presented properly lies within the limited jurisdiction of this court.

Appellant states that our jurisdiction arises as follows:

“Appellant contends: (1), that the statutory construction here involved is the ruling of the Circuit Court below, based on V.A.M.S., 473.360, in contravention of Appellant’s rights under the Missouri Constitution, Article I, Sec. 13, the U. S. Constitution, Article I, Sec. 10, and the 14th Amendment; (2), that the Court below in dismissing Appellant’s claim in the amount of One Thousand Six Hundred Seventy-two and 29/100 Dollars ($1,672.29) denied to Appellant rights to which it is entitled by the terms of its contract with the decedent, Bierman, and deprived Appellant of the means of enforcing such rights; and, (3), that these constitutional rights of Appellant were raised in the Probate Court and subsequently in the Circuit Court of St. Louis County.”

From the appellant’s brief and the oral argument, we deduce that the basic contention of appellant is as follows: Its claim is based upon an indemnity agreement executed by Isaac Bierman in 1947, in connection with the issuance of a bond by Hartford in favor of the Compressed Steel Corporation. In June, 1962, a claim was made on the bond which Compressed did not pay and Hartford did on October 4, 1962. The estate of Bierman is alleged to be liable to Hartford under the indemnity agreement for $1,672.29, the amount which it paid on the bond. Appellant’s position is that the nonclaim statute (§ 473.360, RSMo 1959, V.A.M.S.), if applied against it, would impair the obligation of its contract in violation of § 13, Article I, Constitution of Missouri, 1945, and § 10, Article I, Constitution of the United States. Appellant also contends that it has been denied equal protection of the laws in violation of the 14th Amendment to the Constitution of the United States by reason of the fact that § 473.360 does not bar contingent claims based upon warranties in the transfer of real estate, but would bar its contingent claim if not filed and presented in accordance with that section.

Whether or not these questions are actually before us depends upon whether they were properly raised in the courts below and properly preserved for review here.

We start with the proposition that our jurisdiction must affirmatively appear from the record before us. A basic requirement is that such record show that the constitutional question was raised at the earliest opportunity. The record here is barren as to what, if any, constitutional questions were presented in the Probate Court. No showing is made regarding constitutional questions in the Circuit Court until the appellant’s motion for new trial. In its motion, the only references to the constitutional provisions here attempted to be relied upon are in paragraphs 6 and 8, which read as follows:

“6. The Court erred in sustaining the executors’ Motion to Dismiss because the Court’s order sustaining said Motion is against the law in that it is in violation of Article I Section 13 of the Missouri Bill of Rights which provides that no law impairing the obligations of contracts shall be enacted.”
“8. The Court erred in sustaining the executors’ Motion to Dismiss this plaintiff and petitioner’s claim because the order of the Court sustaining said Motion is against the law in that it violates the 14th Amendment to the Constitution of the United States wherein it denied to this petitioner and plaintiff the rights which are accorded by Section 473.360 Vernon’s Ann.Mo.Stat. to owners and grantees of real estate having contingent claims based on warranties made in connection with conveyance of the said real estate.”

We find no reference to § 10 of Article I of the Constitution of the United States, which appellant invokes. However, even if it were coupled with the reference in paragraph 6 to Article I, Section 13, Constitution of Missouri, we would be faced with the fact that the specification in the motion for new trial is insufficient to present a constitutional question for review on appeal. The motion does not attack any legislative enactment as unconstitutional, but lays the charge only against the court’s order sustaining the motion to dismiss. The constitutional provisions relied upon may be violated only by an enactment of the legislature. Newman v. John Hancock Mutual Life Ins. Co., 316 Mo. 454, 290 S.W. 133, 134 [3]; Kemper Mill & Elevator Co. v. Missouri Pacific Ry. Co., Mo.Sup., 178 S.W. 502, 503 [1].

We are confronted with the same problem with respect to the specification which attempts to invoke the 14th Amendment to the Constitution of the United States. The constitutional deficiency is attributed to the ruling of the court, not to the statute upon which the court’s ruling is based. Equal protection of the laws may be denied by state judiciary action. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R.2d 441. However, mere alleged error in judicial ruling is not sufficient to invoke the equal protection provision of the 14th Amendment. State v. Euge, Mo.App., 359 S.W.2d 369, 370-371 [3, 4]. Since appellant’s assignment did not question the constitutionality of § 473.360, it would, at the most, raise only a question of erroneous application (see Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98) or construction of § 473.360, which does not properly involve constitutional construction within the meaning of our jurisdictional requirement. § 3, Article V, Constitution of Missouri, 1945. Langan v. United States Life Ins. Co., Mo.Sup., 114 S.W.2d 984.

Thus, even if we should assume that the appellant’s motion for new trial was, in this particular informal proceeding, (see Ivey v. Ayers, Mo.Sup., 301 S.W.2d 790, 793-794 [3-5]), the first place in the record of the proceedings where its constitutional objections might have been specified, the specifications here found were insufficient to present any constitutional question to the trial court for its determination and are insufficient to preserve the matter for our review. Inasmuch as constitutional objections must be properly preserved in the motion for new trial if they are to form the basis for our jurisdiction, we conclude that the matters here attempted to be raised are not properly before us and afford no basis for our jurisdiction of this appeal.

By its reply brief, appellant has sought also to raise the question that § 473.360 is a special law impairing the obligation of contract in contravention of § 40(6) and (28) of Article III of the Constitution of Missouri. However, this question may not be presented for the first time by the appellant’s reply brief. Magenheim v. Board of Education, Mo.Sup., 340 S.W.2d 619, 621 [4].

There being no other basis for our jurisdiction, we conclude that we have no jurisdiction of this appeal.

The cause is transferred to the St. Louis Court of Appeals.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Marcus GOODWIN, Appellant.
    No. 51500.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.
    Motion for Rehearing in Court En Banc Denied Dec. 13, 1965.
    Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
    Marcus Goodwin, pro se.
   BARRETT, Commissioner.

For shooting, stabbing and killing his common-law wife, Mazie Lee, Marcus Goodwin was found guilty of murder in the first degree and sentenced to be executed. After his conviction was affirmed in this court, State v. Goodwin, Mo., 352 S.W.2d 614, the Governor of Missouri commuted his sentence to life imprisonment. Thereafter, in March 1962, on appellant’s behalf, there was filed in this court an application for habeas corpus and in that proceeding all relevant documents not only of his trial, the full transcript of which was available to this court, but his complete hospital records were before this court. In the trial of his case he was represented by experienced trial counsel, and, despite his present attacks on his lawyers, was represented in his habeas corpus proceeding by two noted lawyers, including a former president of the Missouri Bar Association. After “evidence heard in this habeas corpus proceeding” in this court en banc, the petition for habeas corpus was denied, In re Goodwin, Mo., 359 S.W.2d 601, and the Supreme Court of the United States denied certiorari on November 19, 1962, 371 U.S. 915, 83 S.Ct. 262, 9 L.Ed.2d 174.

And now on his own behalf, being permitted to proceed as a poor person, Marcus Goodwin filed in the Circuit Court of Jackson County, where he was of course convicted originally, a motion to vacate and set aside judgment under Criminal Rule 27.26, V.A.M.R. In this proceeding the petition in habeas corpus was also appended but the circuit court, in February 1965, summarized the issues attempted to be raised in the proceeding and found that on the record before the court they were without merit and denied his motion to vacate. It is not necessary upon this appeal to detail any of the facts, or for that matter to detail the claims here, they are all set forth in the former opinions and files of this court. It is sufficient to say that on this appeal he makes the same claims of insanity, (in part belied by the papers he has personally filed) and improper representation of counsel that he made on the original appeal or in his application for habeas corpus, all of which were presented by distinguished counsel and fully explored by this court. The consequence of all these matters is that there is no basis for this proceeding under Criminal Rule 27.26 to vacate the sentence and judgment, all the issues he now seeks to raise were fully considered in both the former appeal and the habeas corpus proceeding and “he is thereby precluded from litigating the questions further by means of a motion to vacate and set aside,” (State v. Thompson, Mo., 324 S.W.2d 133, 139) and, therefore, the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


text:
    Leslie M. DEAN, Plaintiff-Appellant, v. Russell N. YOUNG, Defendant-Appellant, and Sears, Roebuck & Company, a Corporation, Defendant-Respondent.
    No. 51381.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dee. 13, 1965.

      George E. Lee and Doris J. Banta, St. Louis, for appellant Leslie M. Dean; Carter, Bull, Baer, Presberg, Lee & Stanard, St. Louis, of counsel.
    F. X. Cleary, Donald L. James, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant Russell N. Young.
    John M. Goodwin, Henry S. Stolar, Hock-er, Goodwin & MacGreevy, St. Louis, for respondent.
   WELBORN, Commissioner.

Leslie M. Dean brought suit against Russell N. Young and Sears, Roebuck & Company for personal injuries sustained when a truck in which Dean was a passenger collided with an automobile driven by Young. Dean’s petition attributed the collision to Young’s negligence and alleged that Young was the servant of Sears, acting, at the time of the accident, within the scope of his employment. A jury returned a verdict in favor of plaintiff and against both defendants for $390,000.

The trial court overruled Young’s motion for new trial and Young appealed from the judgment entered against him on the jury’s verdict. The trial court sustained Sears’ motion for judgment in accordance with its motion for directed verdict at the close of all the evidence. From this judgment in favor of Sears, Dean appealed.

The accident giving rise to the lawsuit occurred at about 6:30 A.M., September 17, 1960, on U. S. Highway 66 near its intersection with Missouri State Highway 28 and at a point about 4}/£ miles east of Fort Leonard Wood. Dean was a passenger in a Dodge pickup truck being driven west on Route 66 by John Butler. Route 66 is a divided 4-lane highway in the area and Butler was in the left or inner lane of the westbound roadway. Young was also driving west on Route 66 and overtook the Dodge pickup. Young passed the Dodge on the right and then, according to Butler and Dean, turned toward the left or inner lane in front of the Dodge. The left end of the rear bumper of Young’s vehicle caught the right end of the Dodge front bumper. Butler was unable to control the Dodge and it overturned, producing serious injury to Dean which will be more fully discussed below.

The issue on the appeal of Dean from the judgment in favor of Sears is whether or not the trial court properly concluded, in response to Sears’ after-verdict motion, that no submissible case was made against Sears on the question of a master-servant relationship between it and Young. Determination of that question will involve a somewhat detailed consideration of the facts bearing upon the issue.

Young was a native of the Lebanon, Missouri vicinity. He had moved to St. Louis and in 1956 he was employed by Dependable Appliance Service, Inc. as a service technician repairing washing machines and dryers. In January, 1960, Young was laid off of his job in St. Louis and he went to Lebanon to visit his parents.

Sears had a catalog store in Lebanon and Young went to the store and asked the manager, Mr. Walters, about doing service work. Sears sold various appliances which required service from time to time, some under warranties made when the devices were sold by Sears. Customers requested service through the Sears store at Lebanon. That store did not have a regularly employed serviceman. For some work, Sears’ employees in Rolla and Springfield were called in. For other work, various servicemen in Lebanon were used to service particular appliances, such as television receivers, washers and dryers and refrigerators.

Walters knew Young and knew that he was experienced in repairing Sears’ washers and dryers. Walters told Young that he was looking for a serviceman and an informal, oral understanding was arrived at whereby Young would, when in the Lebanon vicinity, handle service requests made through the Sears store.

Sears furnished Young no tools. He was not provided an office or shop in the Sears store. He used his own auto to call on the customers and performed his work in the customer’s house or wherever the appliance was located. Whenever request for service was received at the Sears store, the employee receiving the request would, on a Sears’ “Service Order” form, record the name of the customer, his address and the service requested. The order was checked in an appropriate box to show whether the work was to be charged to the customer, or, in case a warranty was in effect on the appliance, to the store.

Young would go to the store when he was in Lebanon and pick up the service orders which had accumulated since his last stop at the store. He would then go to the customer’s address and perform the necessary-service work. During 1960, Young worked on 255 separate service orders through Sears’ Lebanon store. The work was done on 53 separate dates, 36 of which were Saturdays, 6 Fridays and the remainder on the other days of the week.

At the time of the accident, Young had resumed work with Dependable Appliance Service, Inc., in St. Louis. He left St. Louis before daylight on Saturday, September 17, 1960, driving his own Chevrolet station wagon which he used in the Sears’ service work. While in St. Louis, Young had received a postcard from Dan Helton of Palace, Missouri, asking Young to stop to service appliances. Young had previously worked on an appliance of Helton’s. Palace is south of Fort Leonard Wood and Young intended to go there on the morning of the accident before going on to the Lebanon store. Following the accident and before going to Lebanon, Young did go to Helton’s and worked on two appliances, one of which was in warranty and for which Young’s labor was charged to Sears. Young himself prepared the service orders for these jobs on blank forms which Sears had furnished him.

Young also had in his possession at the time a service order dated September 9, requesting service for Doyle Murrell at Falcon, Missouri. Young intended to make this call also before going to Lebanon. He did call on Murrell and did the necessary work, although he was not sure whether he did so before going to Lebanon. In any event, Young went to Lebanon, where he picked up seven other service orders which he filled on September 17.

We have accepted the criteria set out in the Restatement of Agency for determining whether or not a questioned relationship is that of master and servant or employer and independent contractor. See Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58, 61 [3-5]. We will consider how the evidence here bears upon each of the criteria specified in the Restatement of Agency, 2d, § 220, p. 485.

According to the Restatement:

“(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.

“(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

“(a) the extent of control which, by the agreement, the master may exercise over the details of the work; * *

This element, control or right to control, is the one most frequently referred to in our cases distinguishing a servant from an independent contractor. Gardner v. Simmons, Mo.Sup., 370 S.W.2d 359, 362 [5]; Talley v. Bowen Const. Co., Mo.Sup., 340 S.W.2d 701; Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793, 797 [5]; Benham v. McCoy, Mo.Sup., 213 S.W.2d 914, 919 [7-11]. By the Restatement’s definitions, this is the element primarily which distinguishes a servant and an independent contractor. 1 Restatement of Agency, 2d, § 2, p. 12.

In this case, the evidence of the issue of control or right to control demonstrated rather clearly the absence of this element. The evidence showed that Young came and went as he saw fit. According to Walters: “He didn’t come in on no certain days, not every day. When he was off, nothing else to do, he would come by. I never did know when he was coming or not coming.” Walters did not direct on which service orders Young should work. The orders were placed on a spindle. Young looked them over and took those which he chose. Plaintiff states that the evidence shows that Walters sometimes told Young which customers to attend to first. We, however, fail to find evidence which warrants such conclusion. Walters apparently did inform Young on occasions that a customer was particularly upset, “one that was really kicking, then he would have to do what he considered was best about it.” The fact that Young was told to do what “he considered best about it” is more indication of lack of control than the contrary.

As will be discussed more fully below, Young subsequent to the accident did become, for a time, a full-time, regular employee of Sears’ Lebanon store. Walters succinctly described the difference between Young’s status then and his status at the time of the accident, by saying: “He done what I told him to do after I hired him. He done what he wanted to do before I hired him.”

Plaintiff points out that Young was required to do certain paper work for Sears in the manner dictated by Sears. The reference is to Young’s filling in on the service order form supplied by Sears information concerning the work done on a particular order, the time spent and the charge made for his work. On warranty jobs, this information was necessary in order for Young to obtain his compensation from Sears. The fact that Sears required such information to be submitted on a form provided by it does not indicate any significant exercise of control of the manner of Young’s performing the service. See Williamson v. Southwestern Bell Tel. Co., Mo.Sup., 265 S.W.2d 354, 358-359 [3-5].

“(b) (W)hether or not the one employed is engaged in a distinct occupation or business; * *

Young was engaged in a distinct occupation of a repairman. His business as such was distinct from that of Sears at the period in question. Young bore the expense of the business. He alone received any profit thereupon.

Plaintiff argues that Young did not hold himself out to the public as an appliance repairman; that he was employed as a servant by Dependable and that, therefore, he was not engaged in an independent calling. Although the work of a repairman is not necessarily an independent calling, it obviously may be. It is a matter of common knowledge that many persons do engage in service work as an independent calling or occupation. The fact that Young was engaged in such work for Dependable as a servant (if he was) would not require the conclusion that he was engaged for others in the same relation, or even that he would likely be so engaged.

“(c) (T)he kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; * *

In this case, the evidence showed no clear pattern in the Lebanon area. Sears did sometimes use regularly employed servicemen from other localities. Young himself was eventually employed at the Lebanon store in what was likely the status of a servant. On the other hand, at the time of the original arrangement between Young and Sears, the work was being done in part by independent specialists. Walters testified that he wanted to employ a refrigerator repairman who did occasional work for Sears, but couldn’t do so because the man wanted to operate his own shop.

“(d) (T)he skill required in the particular occupation; * *

Undoubtedly, the work did require a significant degree of skill and training. Walters was aware of Young’s experience in working on Sears’ appliances when the arrangements were made originally.

“(e) (W)hether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; * *

Young used his own tools and his own automobile. Sears did not provide a place for his work.

Sears did furnish some of the parts needed for repair work. However, as to work not under warranty, Young was charged the regular Sears’ retail price and he was free to charge the customer whatever he chose.

Plaintiff points out that Sears furnished Young “Service Order” forms, he having had blank forms in his possession which he filled in upon his call to Helton on the morning of the accident. We perceive no greater significance in such fact than in the fact that Young was required to complete the service order forms given him and return them to Sears. Primarily, the entire matter related to his compensation by Sears.

“(f) (T)he length of time for which the person is employed; * *

Young was not employed for any definite time. He had no definite hours of employment. He worked irregularly when he was in Lebanon, if work was available, and if he wanted to do it.

Plaintiff points out that Young had no contract for a fixed period, but could terminate his work at any time and Sears could terminate his services at any time. An employer-independent contractor relationship need not be for a fixed time and may be terminable at the will of either party. Nor would the absence of a formal contract in writing be of particular significance. Many employer-independent contractor relationships do arise from formal written agreements, such as when a contractor is engaged to build a building. However, the relationship need not be based upon formal written contract.

“(g) (T)he method of payment, whether by the time or by the job; * *

Although Young’s compensation, at least as to work under warranty, depended in part upon the time spent, he was basically compensated by the job. He received $4.00 for the first 30 minutes on any call or any time less than 30 minutes. Thereafter, he received $1.00 for each 15 minutes spent on the call. According to Walters, he didn’t tell Young what to charge for his labor on the work out of warranty which was paid for by the customer. Young testifed that he charged customers who paid him at the same rate he received for warranty work. When asked whether this rate was suggested by Walters, Young replied, “No, I don’t think so.” Sears did not bill customers for Young’s work out of warranty, although on occasions the customer would leave the money at the store and it would be paid Young when he came in. If the customer did not pay, Young received no compensation.

Plaintiff says Young was paid not by the job, but by the hour. Young was not paid by the hour according to our understanding of such an employment arrangement. He did receive $4.00 if the service call required 30 minutes or less and $1.00 for each additional 15 minutes of the call. However, as shown by service orders in evidence, he received the $4.00 if the call required only 10 minutes, 20 minutes or 30 minutes. On an hourly basis his rate of pay on the 10-minute call was $24.00 per hour, the 20-minute $12.00 per hour, the 30-minute $8.00 per hour and he actually received $6.00 for one-hour calls.

“(h) (W)hether or not the work is a part of the regular business of the employer; * *

Sears undoubtedly was in the business of supplying service for purchasers of its appliances. The evidence showed that at times full-time employees of Sears performed such work, while at other times the work was delegated to whoever was available to do the work.

Plaintiff says the appliance work was not occasional or sporadic, but was a regular part of the business of the Lebanon store where an average of two calls per day was received. Again, that is merely another factor for consideration. Here we have clear evidence that Sears employed two strikingly different approaches to meeting the demand. The different approaches could unquestionably involve different legal relationships and consequences.

“(i) (W)hether or not the parties believe they are creating the relation of master and servant; * *

Plaintiff points to various factors which might have evidenced that such was the belief of the parties to the January, 1960 arrangement between Walters and Young. Walters had the authority to employ servants. He did employ Young on some basis to do appliance repairs for the store. Walters spoke of “hiring” Young, a term which, according to plaintiff, “generally characterizes the master-servant relationship.” Plaintiff would also deduce that Young considered himself to be working for Sears from his inquiries to Walters: “Got anything I can do for you to-day?”

However, the highly tenuous conclusion which plaintiff would draw from these facts fairly well is nullified in this case by the evidence of the changed character of the relationship between Young and Sears, when, in April, 1961, Young did become a full-time Sears employee. At that time, Young submitted an employment application to Sears. He was given intelligence and arithmetic tests by Sears and underwent a physical examination. Sears began to withhold income tax and social security taxes from his pay. Previously, payments to Young by Sears had been reported on Internal Revenue Form 1099, without deduction for income tax withholding or social security taxes. All charges for Young’s work were paid to Sears and Young was compensated at the rate of $2.12 per hour for an 8-hour day, 5-day week. A shop was provided Young in the Lebanon store and tools and equipment were provided for him by Sears. He wore uniforms provided by Sears, bearing the Sears emblem. He was required to fill out a route sheet, indicating his calls, itinerary and time.

All of these elements, present upon the existence of what was a master-servant relationship and absent upon the original arrangement, demonstrate to us that the parties must have considered the original arrangement something other than that of master and servant.

In our opinion, viewing all of the evidence most favorably to plaintiff, the inference is clear that there was no master-servant relation between Young and Sears at the time of the accident. The inference being clear, resolution of the question was properly a matter for the court.

Plaintiff urges that a contrary inference was permissible under the evidence and that the question was, therefore, properly one for the jury. However, to support the inference which he would draw, plaintiff relies upon bits and shreds of evidence, such as that Young worked as a servant for Dependable and was therefore accustomed to work as a servant; that he was required to fill in the service order form in the manner prescribed by Sears; that Sears had provided him the two service order forms filled out when he did the work for Helton; that Sears provided parts for which he did not pay Sears unless the customer paid Young for them; that Young was paid for his labor by the hour; that the relationship between Sears and Young was terminable at will by either party; that Young had no right to substitute another to do the work (the record is silent as to this insofar as we find and plaintiff refers to no place in the transcript where such evidence is to be found) ; that there was no written contract between Young and Sears, and that the work which Young did was a part of Sears’ regular business.

If the evidence relied upon by plaintiff stood alone, it might justify submission of the issue of the existence of a master-servant relationship to the jury. See Mattocks v. Emerson Drug Co., Mo.App., 33 S.W.2d 142. However, although we consider the evidence in the light most favorable to plaintiff, we are not limited to the consideration of only the evidence favorable to plaintiff when, as here, all of the evidence fully describing the relationship has been presented by the plaintiff and is essentially uncontradicted. Practically all of the evidence bearing upon the issue of the relationship between Young and Sears was oral testimony. The defendants offered no testimony. Based upon the cross-examination of some of plaintiff’s witnesses, written exhibits were introduced in evidence by defendants. Plaintiff called Young as a witness in its behalf. Plaintiff also introduced the deposition of Walters, the manager of the Sears store at Lebanon. (At the time of the deposition, Walters was no longer employed by Sears.) We find no basic contradictions in the testimony pertaining to the relationship between Young and Sears. In these circumstances we consider all of the evidence, viewing it in a light most favorable to plaintiff, Talley v. Bowen Const. Co., Mo.Sup., 340 S.W.2d 701, 705-706 [7, 8], Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726, 727-728 [1, 2], although plaintiff is not bound by the testimony of the defendant elicited on his cross-examination, Baum v. Abel, Mo.App., 379 S.W.2d 164, 165. The function of the court is to determine whether from the evidence, so considered, more than one inference as to the status of the parties is reasonably to be drawn. In that event, the inference to be drawn is for the jury. However, where only one inference is permissible, the question is for the court.

Plaintiff asserts that there were contradictions and inconsistencies in the evidence which would preclude the court’s determination of the relation on the basis of undisputed evidence. He points to a statement by Young in his testimony: “They told you what they wanted you to do and what they didn’t want you to do.” However, the statement was made in connection with interrogation of plaintiff as to why he did not check one of the eight numbers under the “Free Service Reason Code” on the service order. No basis for the assumption that the statement was intended to refer generally to direction by Sears appears.

Plaintiff would also find contradiction to Walters’ testimony that he never knew when Young was coming or going in the fact that one witness, Montgomery, at whose residence Young made a service call on the date of the accident had called Sears the day before and was told that a service call would be made the next day. Plaintiff also notes that Young had in his possession a service order which apparently had been picked up by Young on an earlier visit to the store. Plaintiff would deduce from these facts the conclusion that Walters obviously expected Young to return, otherwise he would not have been entrusted with the completed service order, and that Young’s return on September 17 was contemplated since a promise of service was made to a caller the previous day. However, Montgomery did not testify that he was told that Young would call on him the next day. The evidence showed that the Lebanon store called upon various sources of repair service, including Sears’ employees in Rolla and Springfield. A promise that a call would be answered the next day would not necessarily mean that a particular serviceman would make the call. As for the Murrell order which Young had in his possession at the time of the accident, it shows the date taken as “9/9.” Young worked in Lebanon on September 10, 1960. The reasonable inference is that he had picked up the service order at that time, but had not gotten around to it before he decided to stop working on that date. The fact that he had it on the 17th is no evidence that his return on that date had been anticipated by Sears.

We shall not discuss at length the authorities cited by plaintiff. We have examined them carefully. We find none of the cases cited factually similar to this. They generally confirm the oft-repeated statement that each case of this nature must he decided upon its own facts. See Gardner v. Simmons, Mo.Sup., 370 S.W.2d 359, 361. As the cases cited by plaintiff hold, once a prima facie case of agency is made, the burden of producing evidence of an independent contractor relationship devolves upon the defendant. Andres v. Cox, 223 Mo.App. 1139, 23 S.W.2d 1066, 1069; Ward v. Scott Milling Co., Mo.App., 47 S.W.2d 250, 253. Likewise, plaintiff is not obliged to disprove the independent contractor relationship, but only to establish the agency (master-servant) relationship. Gardner v. Simmons, supra; Mattocks v. Emerson Drug Co., Mo.App., 33 S.W.2d 142, 144. Again, as plaintiff states, the general rule is that once plaintiff has made a prima facie case of agency, the issue must be submitted to the jury. E. R. Darlington Lumber Co. v. Missouri Pacific R. Co., 243 Mo. 224, 147 S.W. 1052, 1058. However, that rule is not applicable when, as here, the unfavorable, undisputed evidence which plaintiff himself produced effectively destroys the prima facie case based upon only a portion of the evidence. Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 101 [1, 2], 57 A.L.R. 615. In that case the court pointed out that the rule relied upon by plaintiff has exceptions, “When the proof is documentary, or the defendant relies on the plaintiff’s own evidential showing (or evidence which the plaintiff admits to be true), and the reasonable inferences therefrom all point one way, there is no issue of fact to be submitted to the jury.” 1 S.W.2d 101.

In our opinion, the reasonable inferences from plaintiff’s evidence, considered as a whole, all point to the existence of an employer-independent contractor relation between Sears and Young. The trial court, therefore, properly sustained Sears’ motion for judgment.

Turning to the appeal of defendant Young, his first contention is that the trial court, by submitting the case against Sears and him together, denied him a fair trial “because the jury was thereby improperly permitted to deliberate questions of liability and damages against a corporation of great and well-known financial strength * * * ”

According to Young, and the record so shows, the trial court expressed, prior to the submission, “great reluctance” to submit the case against Sears and further announced at that time that he would “take away” any verdict against Sears. Young argues that submission of the case against both defendants in such circumstances was prejudicial to him both as to the issue of liability, and as to the issue of damages. “If the case had not been submitted against defendant Sears, the jury may well have returned a verdict in favor of this defendant. But, even if the jury found against him, obviously, the amount of the verdict would have been considerably less.”

Young’s counsel candidly acknowledges that the proposition which he submits is a novel one. He acknowledges the general rule that one defendant cannot complain about error committed against a co-defendant. McCamley v. Union Electric Lt. & Pwr. Co., Mo.App., 85 S.W.2d 200. However, Young would apply an exception to such rule, similar to that applied in Nevins v. Solomon, 235 Mo.App. 967, 139 S.W.2d 1109, certiorari quashed, State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836, and Biggs v. Crosswhite, 240 Mo.App. 1171, 225 S.W.2d 514, that the error must not be prejudicial to the rights of the other defendant. In those cases, the prejudice consisted of the granting of a directed verdict as to one defendant and then submitting the case as to the other on a defense that the negligence of the exonerated defendant was the sole cause of the accident.

Here, other than the bald statement that a submission against Young alone might have produced a verdict in his favor because Sears is a corporation, Young does not demonstrate in what manner the submission of the case against both defendants affected him as to his liability or defenses. The only defense submitted on behalf of Young was that the accident was caused by Butler’s negligence in permitting the front end of the Dodge to come into the right-hand lane without warning, causing the collision. The jury obviously found against this defense and the evidence in support of plaintiff’s theory as to the cause of the accident and defendant’s negligence in connection therewith is not questioned. The net effect of Young’s argument is that the psychological effect upon the jury of the submission of the case against both defendants was such that the matter of liability was determined on the sole basis that Sears was a corporate defendant, without regard for the basic question of Young’s negligence. We are unwilling to accept such assumption which would, carried to its ultimate application, invalidate any verdict against a wealthy corporate defendant.

As for the question of damages, Young argues that the situation is analogous to that found in Thomas v. Durham Motors, Inc., Mo.App., 389 S.W.2d 412, and Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43, where it was held that when two or more defendants are sued jointly, their wealth either individually or collectively cannot be shown for the purpose of punitive damages, for one defendant cannot be punished for the wealth of another. However, that rule does not prohibit actions for punitive damages against joint defendants by reason of the fact that one defendant is without property and that the other is possessed of considerable means. 25 C.J.S. Damages § 126, p. 743. In any event, we are not here dealing with punitive damages, but with compensatory damages which necessarily depend upon and must have their basis in the damage sustained by plaintiff.

Since Young next contends that he should have been awarded a new trial because the verdict was so grossly excessive as to show that it was motivated by sympathy, passion, bias and prejudice, we consider next the nature and extent of plaintiff’s injuries and his damages resulting therefrom. As Young states, the $390,000 verdict is in excess of any personal injury judgment sustained by this court. That fact alone, however, does not require that Young’s contentions be upheld.

As a result of the collision, the Dodge pickup in which Dean was riding overturned and he was pinned upside down between the seat and the top of the truck. He was aware immediately after the accident of a lack of sensation in his lower body and that he could move only one hand and thumb. He was removed to the Pulaski County General Hospital at Waynesville, where X-rays revealed a compression fracture with dislocation of the 5th cervical vertebra, which impinged into the spinal canal J4 inch and damaged the spinal cord. He was transferred by airplane to St. John’s Hospital in Springfield, Missouri, on September 18, 1960. Upon admission there, Crutchfield tong traction with 15-pound weight was applied to his skull and he was placed in a Foster frame. On September 19, 1960, Dr. McAlhany, a neurological surgeon, examined plaintiff and reported the following observation: “He was awake, he was alert, he was oriented; he was coherent in talking. He couldn’t move his legs. He had very limited movement of his arms. He couldn’t extend either arm; he couldn’t extend his fingers. He could very weakly close his fingers. He could very weakly bring his arm to his (sic), but he couldn’t push down. He was having a slight amount of difficulty with his breathing, with his respiration, and his respirations were what we call ‘diaphragmatic.’ He was breathing purely with his diaphragm. His chest muscles were paralyzed. He was breathing only with his diaphragm.” On September 20, 1960, the doctor performed a cervical laminectomy which confirmed the X-ray diagnosis of fracture of the 5th cervical vertebra with damage to the spinal cord.

During his stay at St. John’s, lasting until November 26, 1960, plaintiff was under constant nursing care. The Crutchfield tong traction was kept in place for six weeks, at which time it was removed and a Thomas collar placed on him and physical therapy treatment was undertaken. Plaintiff was unable to move himself and nursing care was required to turn him in the Foster frame. Plaintiff’s bladder control was paralyzed, requiring the insertion of a catheter. Lack of bowel control required periodic enemas.

For several weeks after his admission, plaintiff had considerable pain in his neck and arm which required morphine originally and other pain-killing medication throughout his hospital stay.

According to Dr. McAlhany, plaintiff’s neurological condition was essentially unchanged upon his discharge from St. John’s. He was flown from Springfield to Hines, Illinois, on November 26, 1960, where he was admitted to the Veteran’s Administration Hospital. Neurological findings there were essentially the same as those previously made. He was discharged from Hines on June 16, 1961. At that time, he was wearing a right-hand metacarpal pha-langeal flexor, with which he was able to perform certain functions such as feeding himself, holding a pencil, using the telephone, shaving himself and holding a cigarette. At the time of his discharge he had only slight function in his left wrist, but there was no significant neurological recovery in the remainder of his trunk and lower extremities.

Upon his discharge from Hines, plaintiff returned to his home in Michigan, where he was cared for by his wife, daughter and son until the date of the trial. He slept in a regular bed at home, but had to be assisted in getting in and out of bed and in turning over. A hoisting device was employed to take him to the bathroom. His bowel function had resumed with the assistance of medication, but urine disposal was through a catheter which his wife changed twice a week.

Dr. McAlhany examined plaintiff on the morning of the trial and reported that he “found essentially no basic change in his neurological examination. There has been, since November, 1960, a slight improvement in the strength of each biceps muscle, which he pulls up, but he remains obviously weak in these muscles. There has been a definite improvement in the shoulders. He can abduct his shoulders with much more strength. His fingers and arms remain severely weakened and compromised. He cannot extend the fingers of either hand. He can flex the fingers very weakly. The small muscles on each hand which supply and control finger movements have undergone severe shrinkage and wasting since he was examined last [11/26/60] by me.”

According to Dr. McAlhany, the plaintiff’s neurological condition is “without question” permanent.

Reasonable and necessary expenses for hospitalization and treatment to the date of trial amounted to $10,392.00. Current medical outlays were running at the rate of approximately $1,000 per year at the time of trial.

Plaintiff was 33 years of age at the time of the accident. He had finished the second year of high school and worked at various construction jobs in Michigan. In 1960, he came to Fort Leonard Wood as an employee of Engineered Concrete Construction Company. His compensation from that company in 1959 was $7,783. After coming to Fort Leonard Wood, he began his own business, Les Dean Enterprises. That company was engaged as a subcontractor on housing work at Fort Leonard Wood at the time of the accident. The company had 60 employees and at the time of the accident had completed a substantial portion of a $240,000 subcontract. The project superintendent sought to hire Dean to work for the principal contractor on the job and offered Dean $1,000 per month, but Dean preferred to work with his own company. Dean was drawing $150 per week from his company. As a result of the accident, Dean’s company was forced to go out of business.

After his discharge from Hines Veteran’s Administration Hospital, Dean opened a garden supply business and spent about 8 hours a day working there, with the assistance of members of his family. However, the project was not profitable and Dean gave it up. At the time of trial, he had gone into the used car business, working at a desk 7 or 8 hours a day and answering the telephone. At the time of trial, the business had not shown a profit.

Dean was a normal, healthy, athletic individual before his injury. According to Dr. McAlhany, a person who suffers a spinal injury such as Dean and who lives to normal life expectancy is exceptional, as the majority of persons who suffer such injuries do not survive for the period of normal expectancy. However, according to Dr. McAlhany, Dean “looks very well today” and it is “purely speculative as to what is going to take place in the future with the man.” A normal 37-year-old man, Dean’s age at the time of trial, has an average life expectancy of 33.4 years and an average work expectancy of 26.8 years.

We reject Young’s contention that the verdict is so grossly excessive as to indicate that the verdict of the jury was motivated by sympathy, passion, bias and prejudice. His argument in support of this conclusion is based almost exclusively on the fact that the verdict is grossly in excess of any other personal injury verdict rendered in Missouri. Whether or not it is, we do not judicially know. However, that fact alone would not show that the verdict was the result of sympathy, passion, bias and prejudice. In his argument, Young in no manner attempts to relate the size of the verdict to the elements of damage shown by the uncontradicted evidence of plaintiff. If Young is to succeed in this 'contention, the burden is upon him to demonstrate that the amount of the verdict returned by the jury was “glaringly unauthorized by any evidence.” Bente v. Finley, Mo.App., 83 S.W.2d 155, 161. This he has not even attempted to do and it is not our duty to analyze the evidence from this standpoint.

In support of his final contention that the verdict is excessive and should be reduced by remittitur, Young relies primarily upon the rule of reasonable uniformity. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157. Young argues that Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, and Coffman v. St. Louis-San Francisco Ry. Co., Mo.Sup., 378 S.W.2d 583, are the cases which have been considered by the Supreme Court in which the circumstances most closely approach those of the present case and that, in the interest of uniformity, the verdict here should be reduced to the vicinity of that approved in those cases. In Moore, a $150,000 judgment, reduced to that amount by remittitur of $50,000 by the trial court, was affirmed. In Coffman, a $50,000 remittitur was order by Division No. Two from a $270,000 verdict.

Both Moore and Coffman involve similarities to and differences from the present case. The ages of plaintiff (37 at time of trial) and Moore (34 at time of trial) are more nearly comparable than those of plaintiff and Coffman (17 years of age at time of trial). The injuries suffered by plaintiff are more nearly comparable to those sustained by Coffman. Coffman’s spinal cord was severed and he was paralyzed from the level of and below C-7. Moore sustained multiple fractures of the lower extremities, required amputation of the right leg at the knee and a total of 21 operations. However, as pointed out in Coffman, “such residue of body and extremities that ‘ * * * [Moore has] left’ are sensory, and capable of utilization from the brain; * * 378 S.W.2d l. c. 601. Moore was a police sergeant earning $381 per month. Dean had demonstrated earnings of almost $7,800 in 1959, was drawing $150 per week from his own company at the time of his injury and declined an offer of employment at a compensation of $1,000 per month, preferring to remain with his own company. Coffman had no demonstrated earning capacity, but the excessiveness of the verdict was considered in the light of potential future earnings, estimated, on the basis of his intention to go to college, at $6,000 per year. Moore’s medical expenses and lost earnings at the time of trial amounted to some $32,400. On the basis of Dean’s demonstrated earnings, his medical expenses and lost earnings amounted to approximately $44,000. Coffman being a minor, those items were not factors in the damages in his case. All three (Dean, Moore and Coffman) will require nursing service for the rest of their lives. As with Moore, Dean is now receiving the. benefit of the services of his wife and children in lieu of professional nursing care. However, as in Moore, the jury would be entitled to take into consideration the probability that such family care will not always be available.

Viewing plaintiff’s demonstrated superi- or earning capacity and the fact that in Moore a $150,000 judgment was found not excessive, so that there was no determination of what judgment might have been sustained on the basis of the evidence in Moore, we are convinced that the rule of uniformity does not require that the judgment here be limited to the amount affirmed in Moore.

Coffman, being younger than plaintiff here, his normal life expectancy upon reaching his majority was 48.3 years, compared with Dean’s 33 years at the date of trial. Coffman, however, had no demonstrated earning ability, although, as above mentioned, an estimated figure of $6,000 per year was used in consideration of the question of the excessiveness of the verdict. Dean, on the other hand, did have demonstrated earning capacity and, in view of the offer of a job at $1,000 per month which he declined, the jury might reasonably have found that his potential earning capacity considerably exceeded the $7,800 per year which he was drawing from his company. Special damages here of more than $44,000 were not involved in the Coffman judgment, ultimately affirmed for $220,000.

Considering plaintiff’s evidence here in its entirety and viewing the matter in the light of our uniformity rule, we consider that the verdict for plaintiff was excessive by $140,000. If plaintiff will remit the sum of $140,000 within fifteen days from the date of the filing of this opinion, the judgment will be affirmed as of the date of its rendition for $250,000; otherwise, the judgment will be reversed as to defendant Young and the cause remanded for a new trial as to him. The judgment of the trial court as to defendant Sears, Roebuck & Company is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    STATE of Missouri, Respondent, v. Sterling Junior HILL, Appellant.
    No. 51286.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dee. 13, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Richard G. Altobelli, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Lewis E. Pierce, Robert G. Duncan, Pierce & Duncan, Kansas City, for appellant.
   HIGGINS, Commissioner.

Sterling Junior Hill, charged with a prior felony under Section 556.280, RSMo 1959, V.A.M.S., was found guilty of robbery, first degree, and sentenced to twenty-five years’ imprisonment. Sections 560.120 and 560.135, RSMo 1959, V.A.M.S. Upon appeal we held that the evidence on the question of defendant’s guilt of robbery was sufficient for the jury; however, we held also that while a Certified Transcript of Serial Record of the Department of Corrections, describing the named person and containing photographic and fingerprint identification, was sufficient to show defendant was received at the penitentiary and was discharged on commutation of a 2-year sentence after serving from October 21, 1957, to December 1, 1958, it did not prove his conviction of an offense making Section 556.280, supra, applicable. Accordingly, we declared the sentence void and remanded the cause with directions to the trial court to cause defendant to be brought before it to hold a hearing on the issue of former conviction and, if proved, to pronounce sentence and judgment, but, in the alternative, if the issue be found in favor of defendant, to grant him a new trial. State v. Hill, Mo., 371 S.W.2d 278, 282, 283 [7-9]. The court held a hearing on these issues and found “that the previous conviction set forth in the Information has been proved by the state.” The previous conviction set forth in the amended information, upon which defendant was tried, was “that Sterling Junior Hill * * * at the County of Polk, State of Missouri, at the October, 1957 Term of Court, was convicted of a felony, to wit: Burglary, and was sentenced to two (2) years on the Missouri State Penitentiary therefor; that thereafter on the 21st day of October, 1957, he was received at the Missouri State Penitentiary at Jefferson City, Missouri, that thereafter on the 1st day of December, 1958 he was released from said penitentiary upon commutation of sentence.” After overruling defendant’s motion for new trial, thereafter filed, defendant was again sentenced to 25-years’ imprisonment and he has appealed.

At the hearing held pursuant to our mandate, the Certified Transcript of Serial Record of the Department of Corrections from the original trial was received as Exhibit I. The subject of the exhibit was “Sterling Hill, Jr.,” and a picture of defendant with a number card showing his serial number 9766 was attached. The exhibit contained a description of Sterling Hill, Jr., at age 17, and showed that he was received October 21, 1957, for the “Offense Burglary, County, Polk.” It also showed a sentence of two years, October 18, 1957, and “Discharged, Commutation of Sentence — MIR-12-1-1958.” Also in evidence was the testimony of Lloyd Wilson, Circuit Clerk of Polk County, Missouri. He identified Exhibit 3 in evidence as the information filed in the Circuit Court of Polk County, in which Sterling Hill was charged with the felony of burglary and stealing in Polk County, Missouri. He also identified Exhibit 2 in evidence as the judgment and sentence affecting defendant. It showed that Sterling Hill appeared in the Circuit Court of Polk County, Missouri, October 18, 1957, in response to an information charging burglary and larceny, and that in company with his lawyer he entered a plea of guilty to the felony of burglary, the larceny charge having been dismissed. It showed also that Sterling Hill was sentenced to imprisonment in the state penitentiary for a term of two years and that “defendant being seventeen years of age and not having previously been convicted of a felony, his imprisonment is hereby commuted to imprisonment in the Intermediate Reformatory at Algoa, Missouri for a term of two years.”

Appellant’s Point I is that the proof did not establish the former conviction, and that there was a fatal variance between proof and charge because the amended information eharged that defendant was received at and released from the Missouri State Penitentiary, while the proof showed he was received at and released from the Intermediate Reformatory.

State’s Exhibits 1, 2, and 3 prove that defendant was convicted and sentenced for the felony of burglary on October 18, 1957; that he was imprisoned in the Intermediate Reformatory on October 21, 1957, and that he was discharged from the Intermediate Reformatory on December 1, 1958. Any doubt raised by the use of the names Sterling Hill, Sterling Hill, Junior, and Sterling Junior Hill was dispelled by the evidence as to age and description of the party received at Algoa, the photograph of that party before the court at the time of the present sentence, and the admission of appellant at the sentencing in the original trial that he had served one term in the Missouri State Penitentiary. State v. Collins, Mo., 394 S.W.2d 368.

The contention of fatal variance between the allegation of imprisonment in the penitentiary and proof of imprisonment in the Intermediate Reformatory is of no merit because we have already held that the Certified Transcript of Serial Record, Exhibit 1, was sufficient to show defendant was received at the penitentiary and discharged therefrom, State v. Hill, supra, 371 S.W.2d l. c. 282 [9] ; and our provision for punishment of second offenses, Section 556.280, supra, applies to persons convicted of a felony and imprisoned in the Intermediate Reformatory at Algoa as well as to those imprisoned in the penitentiary proper. State v. Cerny, Mo., 248 S.W.2d 844, 845 [1].

In Point II appellant says he was denied due process because he did not have a preliminary hearing on the amended charge upon which he was tried. The transcript shows, and appellant concedes, that the only amendment to the original information charging robbery, first degree, was the added allegation of prior conviction under Section 556.280, supra. The amendment in question did not constitute any separate or different offense upon which to hold a preliminary hearing, but only authorized the assessment of punishment by the court instead of the jury if defendant was found guilty of the principal charge and the prior conviction. State v. Ninemires, Mo., 306 S.W.2d 527, 530 [6]; State v. Long, 324 Mo. 205, 22 S.W.2d 809, 811 [1]; State v. Collins, Mo., 383 S.W.2d 747, 750 [7].

Point III charges that the judgment and sentence is a nullity and that appellant was denied due process because he was never arraigned on the information upon which he was tried. The transcript shows that the defendant was arraigned on the original information charging him with robbery, first degree; and we held that filing of the amended information in order to charge defendant with prior felony under Section 556.280, supra, on the day of trial and proceeding to trial thereon was proper where defendant had notice of the amendment five days before trial, State v. Hill, supra, 371 S.W.2d l. c. 282 [7]; and, since the amendment did not charge defendant with any separate or different offense (Point II above), it was not necessary to show any further arraignment.

By Point IV appellant claims he was denied equal protection of the law in that he, but not all second offenders, was tried under the Second Offense Act. It is doubtful that this point is preserved for review by the motion for new trial but, if it is properly raised, it is without merit because, in so far as it appears here, the averment is merely an unsupported general conclusion, State v. Butler, Mo., 353 S.W.2d 698, 700 [4-6] ; and the matter of whether to charge a defendant with prior convictions is one properly within the discretion of a prosecuting attorney.

Finally, appellant says the sentence is void because the evidence of prior conviction, sentence and imprisonment was not determined prior to submission of the case to the jury in that the hearing ordered by this court, at which additional evidence was taken, occurred after the jury rendered its verdict. This exact contention was denied in State v. Kent, Mo., 382 S.W.2d 606, 607 [1], when we adopted and applied the holding in Wilfong v. Johnston, U.S.C.A. 9 Cir., 156 F.2d 507, 510, and in In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149, that “[w]here the conviction is correct and the error or excess of jurisdiction has been as stated (in sentencing), there does not seem to be any good reason why jurisdiction of the prisoner should not be reassumed by the court that imposed the sentence, in order that its defect may be corrected.” 151 U.S. l. c. 259, 14 S.Ct. l. c. 326.

Accordingly, we hold that the provisions of Section 556.280, supra, were properly applied and that the court did not err in re-sentencing defendant rather than granting him a new trial.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


author: DONNELLY, Judge.

text:
    Elaine PRETSKY, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Defendant-Respondent.
    No. 51191.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Motion for Rehearing or to Remand for Further Proceedings Denied Dee. 13, 1965.

      Jerome Kalishman, Phillip J. Paster, Blumenfeld, Kalishman & Tureen, St. Louis, for plaintiff-appellant.
    John Mohler, Michael Grove, and Jean C. Smith, St Louis, for defendant-respondent.
   DONNELLY, Judge.

Plaintiff-appellant brought an action alleging damages suffered by reason of extreme anxiety, fright and emotional upset, resulting from the acts of an employee of defendant-respondent, who came to her home, falsely stated to plaintiff that there was trouble on her telephone line, and that it was necessary for him to enter upon plaintiff’s premises in order to correct the trouble.

The trial court sustained defendant’s Motion to Dismiss on the ground that said petition did not allege a cause of action upon which relief could be granted. Plaintiff has appealed from the final judgment of dismissal.

The averments of plaintiff’s petition were as follows: “1. Defendant is a corporation duly organized and existing under and by virtue of law and said defendant maintains an office in the City of St. Louis, Missouri, for the transaction of its usual and customary business. 2. Defendant maintains and operates a telephone system over a substantial area of the United States, including the City and County of St. Louis, Missouri. 3. At all times herein mentioned, plaintiff had the sole and exclusive possession of certain real property situated in the County of St. Louis, Missouri, and known as 7825 Birchmont Drive, University City, Missouri. 4. On September 23, 1964, an employee of defendant, then and there acting within the course and scope of his employment, stated to plaintiff that there was trouble on her telephone line and that it was necessary for him to enter upon the aforesaid premises in order to correct the trouble and enable her telephone to function properly. 5. Relying upon the truth of the statement by defendant’s employee aforesaid, and believing same to be true, plaintiff allowed and permitted said employee to enter upon the said premises. 6. The aforesaid statement by defendant’s employee was false and untrue, was known by him to be false and untrue, and was made by him for the purpose of deceiving plaintiff into granting permission for his entry upon the said premises. 7. While defendant’s employee aforesaid was on the said premises, and after he left, plaintiff became concerned about the truthfulness of his statements and about his purpose in entering upon said premises, and by reason thereof plaintiff suffered extreme anxiety, fright and emotional upset, all to her damage in the sum of Five Thousand ($5,000.00) Dollars. 8. By reason of the wilfulness and maliciousness of defendant’s acts, by reason of defendant’s complete disregard of plaintiff’s emotional well-being, and as a deterrent to future similar action by defendant, defendant should be required to respond to plaintiff for punitive damages.

“WHEREFORE, plaintiff prays judgment against defendant for Five Thousand ($5,000.00) Dollars in actual damages, Fifty Thousand ($50,000.00) Dollars punitive damages, and costs.”

In Trigg v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 147, 153, this Court, in 1881, stated: “The general rule is that ‘pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice, insult or inhumanity.’ ”

Since the Trigg case, supra, in Missouri, as elsewhere, the attitude toward recovery for emotional distress has tended to become somewhat more liberal. 64 A.L.R.2d 100.

In Gambill v. White, Mo.Sup., 303 S.W.2d 41, at 43, this Court stated: “[1] The rule is well established that, in the absence of evidence of an unlawful invasion of one’s rights under circumstances of malice, wilfulness, wantonness, or inhumanity, there is no recovery for fright, terror, anxiety, mental distress, or nervousness, unless these are accompanied by some physical injury. Trigg v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 147, 153; McCardle v. George B. Peck Dry Goods Co., 271 Mo. 111, 120, 195 S.W. 1034, 1036[2]; Weissman v. Wells, 306 Mo. 82, 99, 267 S.W. 400, 401, 406[4]; Porter v. St. Joseph Ry., L. H. & P. Co., 311 Mo. 66, 71, 277 S.W. 813, 914[1]; State ex rel. and to Use of Renz v. Dickens, Mo.App., 95 S.W.2d 847, 851, 852; Gibbons v. Wells, Mo.App., 293 S.W. 89, 91 [1, 2]; Bedenk v. St. Louis Public Service Co., Mo., 285 S.W. 2d 609, 613 [1, 2].

“[2] Inasmuch as plaintiff’s only evidence on the subject was her testimony to the effect that she suffered no physical injury, and there was neither allegation nor evidence of circumstances of malice, insult, or inhumanity, she was not entitled to recover against either of the defendant doctors, and, inasmuch as her testimony as to injury, if any, must of necessity have been the same against the hospital as against the doctors, she was not entitled to recover against defendant St. Joesph’s Hospital.”

This Court, en Banc, in 1957, spoke on the subject in Brisboise v. Kansas City Public Serv. Co., Mo.Sup., 303 S.W.2d 619, and reviewed much of the prior case law in Missouri at pages 624 and 625. See also Ackerman v. Thompson, 356 Mo. 558, 202 S.W.2d 795, 799, and Smith v. Aldridge, Mo.App., 356 S.W.2d 532.

In Biederman’s of Springfield, Inc. v. Wright, Mo.Sup., 322 S.W.2d 892 at page 898, this Court held a valid claim stated for invasion of privacy where unreasonable and oppressive methods were alleged to have been employed for the collection of a debt, and said: “It may be noted, however, without deciding, that the present-day tendency seems to be to permit recovery for severe emotional distress where it has been intentionally caused.”

In Restatement of the Law of Torts, Second, 1965, Vol. 1, at pages 71, 72, 73, 81, 82, and 83, we find the following:

“§ 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm to the other results from it, for such bodily harm.
% ‡ ;jc ‡ * *

“d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’

“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. See Magruder, Mental and Emotional Disturbance in the Law of Torts, 47 Harvard Law Review 1033, 1053 (1936). It is only where there is a special relation between the parties, as stated in § 48, that there may be recovery for insults not amounting to extreme outrage.”

“§ 48. Special Liability of Public Utility for Insults by Servants
“A common carrier or other public utility is subject to liability to patrons utilizing its facilities for gross insults which reasonably offend them, inflicted by the utility’s servants while otherwise acting within the scope of their employment.
******

“c. Gross insults. Any public utility may of course be liable for the infliction of severe emotional distress by extreme and outrageous conduct, under the rule stated in § 46. The rule stated in this Section goes further and makes such a defendant liable for conduct which falls short of extreme outrage, but is merely insulting. At the same time the rule of this Section does not extend to mere trivialities. Even at the hands of public servants the public must be expected and required to be hardened to a certain amount of rudeness or minor insolence, which any reasonable man would consider offensive but harmless and unimportant. Even profanity may not be grossly insulting, where it obviously amounts to nothing more than mere emphasis or a habit of speech, or where it is so customary in the particular community that it may be said to be generally tolerated. An unduly sensitive plaintiff, even though he may be badly upset and suffer illness as a result, cannot found a cause of action upon mere hurt feelings at conduct which is essentially trivial. No passenger on a railroad can mulct the carrier in damages merely because he is told to ‘Hurry up! We haven’t got all night!’

“The obvious condition of the plaintiff must, however, be taken into account in determining whether the conduct is grossly insulting; and language addressed to a pregnant or a sick woman may be actionable where the same words would not be if they were addressed to a United States Marine. The defendant is never liable for doing more than he is privileged to do, even though his manner of doing it may be lacking in the politeness which would be desirable.”

In the instant case, it is alleged that defendant’s employee stated to plaintiff that it was necessary for him to enter her premises to correct trouble on plaintiff’s telephone line; that this statement was false and untrue, and was known by the employee to be false and untrue; and that plaintiff became concerned about the truthfulness of his statements and about his purpose in entering the premises, and by reason thereof plaintiff suffered extreme anxiety, fright and emotional' upset. Plaintiff alleges the acts of defendant’s employee were willful and malicious. However, these allegations are mere conclusions and were not admitted by the motion to dismiss. Brisboise v. Kansas City Public Service Co., Mo.Sup., 303 S.W.2d 619, 621; Therrien v. Mercantile-Commerce Bank & Trust Co., Banc, 360 Mo. 149, 227 S.W.2d 708, 711 [3-9]. Plaintiff does not allege physical impact or bodily injury..

Plaintiff contends that the petition states a claim for relief under any one of four theories: (1) as a cause of action for trespass, (2) as a cause of action for fraud, (3) as a cause of action for invasion of privacy, and (4) as a cause of action for intentional disturbance of plaintiff’s mental and emotional tranquility.

In Zuber v. Clarkson Const. Co., 363 Mo. 352, 355, 251 S.W.2d 52, 54, we said: “In determining if a petition states a claim or cause of action, the averments of the petition are to be given a liberal construction, according the averments their reasonable and fair intendment — fair implication should be indulged from the facts stated. So considered, a petition should be held sufficient if its averments invoke substantive principles of law which entitle plaintiff to relief. A petition is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo.Sup., 246 S.W.2d 742; Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25; Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Section 509.250, RSMo 1949, V.A.M.S.”

Forcible trespass, in an appropriate set of circumstances, could constitute extreme and outrageous conduct. Here, however, plaintiff does not plead forcible trespass. The facts pleaded do not constitute what could be considered to be extreme and outrageous conduct. There is no allegation that the statements made by defendant’s employee were grossly insulting.

We are of the opinion that the instant petition does not contain averments which invoke substantive principles of law which entitle plaintiff to relief.

Judgment affirmed.

All concur.