author: WOLFE, Judge.

text:
    STATE of Missouri ex rel. Forrest William STONE, Relator, v. Franklin FERRISS, Judge of the Circuit Court of St. Louis County, State of Missouri, Division No. 6, Respondent.
    No. 31426.
    St. Louis Court of Appeals. Missouri.
    Jan. 15, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 11, 1963.

      Charles M. Shaw, Claude Hanks, Clayton, for relator.
    Forrest M. Hemker, St. Louis, for respondent.
   WOLFE, Judge.

This is an original action in prohibition. It is brought in this court to prohibit the respondent Judge from passing upon an after-trial motion to award custody of children to the defendant in a divorce action. The motion was filed after judgment and after an appeal had been taken by the plaintiff, relator here, and a supersedeas bond had been approved and filed.

The following are the facts as they relate to the motion:

The relator Forrest William Stone brought suit for divorce against his wife, Dorothea Carla Stone. Dorothea Carla Stone in her answer denied the charges in the plaintiff’s petition and sought a divorce on a cross-bill. She also pleaded a second count in which she asked that the children be awarded to her custody in the event a decree of divorce was denied to both parties.

The court found against the plaintiff on his petition for divorce and against the defendant on her cross-bill for a divorce. There was a finding for the defendant on Count II of her pleading awarding her the custody of the children, who were at that time, and had been prior to the suit for divorce, in the plaintiff-relator’s custody.

After the decree and within time, the plaintiff filed his notice of appeal and posted a supersedeas bond in the sum of $5,000 approved by the court.

After the appeal and the posting of the supersedeas bond, the defendant in the divorce case filed a motion for alimony pendente lite, suit money, and attorney’s fees. In the motion, in addition to the money sought, she requested that she be awarded custody of the children during the pendency of the appeal. The trial judge indicated that he was about to proceed to hear and determine the request for custody of the children pending the appeal, and the plaintiff below sought this writ.

We have but one question before us, and that is the jurisdiction of the trial judge to make such' an order pending the appeal and after a supersedeas bond had been filed by the appealing plaintiff.

If the trial court had the power to order the appealing plaintiff to turn the children over to the defendant, it would be executing an order from which an appeal had been taken. In State ex rel. Gray et al. v. Hennings, 194 Mo.App. 545, 185 S.W. 1153, this court ruled that under such circumstances, the power of the trial court was stayed and it was powerless to proceed with the enforcement of the order appealed from during the pendency of the appeal: We restated this rule in Green v. Perr, Mo.App., 238 S.W.2d 922. The Missouri Supreme Court made a like holding in State ex rel. Burtrum et al. v. Smith, 357 Mo. 134, 206 S.W.2d 558, and citing with approval State ex rel. Gray et al. v. Hennings, supra.

In view of this, it appears to us that the law is well established and that the trial judge was without authority to grant custody of the children to the defendant pending the appeal. Since this portion of the motion presented to the court no justiciable issue, the respondent would be acting in excess of his jurisdiction in assuming to entertain it. State ex rel. State Highway Commission v. Elliott, Mo.Sup., 326 S.W.2d 745.

The preliminary rule in prohibition is made absolute.

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


source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    WALKER BROTHERS, INC., Respondent, v. J. K. SEEAR (U.S.A.) LTD., and Ingolf H. E. Otto, Appellants.
    No. 23531.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.
    Elwyn L. Cady, Jr., Kansas City, for appellants.
    Day & Bonewits, William M. Day and D. D. Bonewits, Kansas City, for respondent.
   CROSS, Judge.

Plaintiff sues to recover of defendants a claimed balance of indebtedness allegedly arising from a series of business transactions between the parties and growing out of mutual accounts. Trial to the court resulted in a judgment for $1810.00 in plaintiff’s favor. Defendants appeal.

Our first concern is whether defendants are in compliance with Civil Rule 83.05, V.A.M.R., which requires (among other things) that the brief for appellant shall contain a fair and concise statement of the facts without argument “in the form of a statement of the facts relevant to the questions presented for determination.”

Defendants’ brief contains eleven lines of printing bearing the caption “Statement of The Facts”. We quote the purported statement, in its entirety, as follows:

“Plaintiff is a corporation engaged in the general insurance business, operation of farms, machine-contract work and the operation of a machine shop (7). Plaintiff’s secretary-treasurer, William C. Walker (7), entered into a business relation with defendant Otto, Walker acting as an insurance broker in the brokering of long-haul truck insurance (9) and Otto acting as agent for the Mid-Union Indemnity Company (31).
“The parties agree that various insurance policies were issued to H. L. and R. L. Bennett; Estes M. Philpott; and Jay Shastid — all by the Mid-Union Indemnity Company (4).
“The record indicates no assignment of these policies, but it does indicate that the Mid-Union Indemnity Company canceled the policies (33)”.

The foregoing quoted matter is not “a statement of the facts relevant to the questions presented for determination”. Absent from it is any reference to the subject matter of the suit. We are unable to learn from it even the general nature of the controversy. It says nothing of the pleadings, fails to define the issues, omits any reference to the trial, makes no mention of the judgment, and narrates no evidence of any material substance. Consequently, the “statement” does not satisfy the requirements of Civil Rule 83.05 or serve its intended purposes. In order to comply with that rule, “the statement of facts should tell the appellate court what the law suit is about and should be in narrative form.” Page v. Laclede Gas Light Co., Mo.Sup., 245 S.W.2d 23. Nor is the deficiency supplied elsewhere in defendants’ brief. Hence, as was said by the Supreme Court in Seifert v. Seifert, Mo.Sup., 52 S.W.2d 817: “This is not a case where a statement of facts is claimed to be defective or insufficient. There is no statement at all. Appellant did not even attempt to make a statement of the facts.”

We are mindful that trader the terms of Civil Rule 83.24 it is our duty to construe all rules of civil procedure liberally so as to promote justice, to minimize the number of cases disposed of on procedural questions and, generally, to determine cases on their merits. We have adhered to that policy and have in numerous instances overlooked violations of Rule 83.05 when the interests of justice so required. However, this court would be derelict in its judicial duty if it did not insist upon at least substantial compliance with the rules governing appellate procedure. See Ambrose v. M. F. A. Co-Operative Association of St. Elizabeth, Mo.Sup., 266 S.W.2d 647; Weinbrenner v. McCall, Mo.App., 336 S.W.2d 532. The burdens that result from imperfect appeals fall upon responding parties as well as upon reviewing courts. When appellants fail to state facts and define issues as the rules prescribe, respondents are deprived of their just entitlement — a full opportunity to know and answer the precise questions in controversy.

The violation of Rule 83.05 exhibited in this appeal is of an aggravated nature. Nothing appears to show good cause why the violated rule should be suspended in this case, nor do the interests of justice so require. Our examination of the transcript discloses that no plain error affecting any substantial right of defendants was committed in the trial of the cause. See Civil Rule 79.04.

For the reasons stated, we have reached the conclusion that we should enforce the clear terms of Civil Rule 83.09 by dismissing the appeal. We deem it unnecessary to cite the abundant case authority for such action.

Accordingly, the appeal is dismissed.

All concur.


author: SPERRY, Commissioner.

text:
    Carl POPPA, Claimant-Respondent, v. Loyce POPPA, Executrix, Estate of Herbert W. Poppa, Deceased, Defendant-Appellant.
    No. 23576.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Walter L. Mulvania, Rockport, for appellant.
    Bernard W. Gorman, Tarkio, for respondent.
   SPERRY, Commissioner.

This case originated in probate court by the filing of a claim by Carl Poppa against the estate of Herbert Poppa, deceased. The claim was based on services rendered by claimant in picking and shelling 180 acres of corn for deceased, in 1959. The probate court entered -judgment for plaintiff in the amount of $1350, on October 24, 1960. No order granting the appeal was made until May 4, 1961. On trial to the court without a jury, judgment was entered for plaintiff in the sum of $1350, the same amount allowed by the probate court. The executrix (and sole beneficiary) of deceased’s estate appeals.

Plaintiff filed a motion in circuit court to dismiss the appeal for lack of jurisdiction, because it was not taken within 30 days of the rendition of the decision appealed from, under the provisions of Sec. 472.180 RSMo 1959, V.A.M.S. The motion was overruled and the question of jurisdiction is urged here. The record shows that the decision in probate court was rendered on October 24, 1960, and that defendant, on October 25, 1960, filed “notice of appeal”, accompanied by an affidavit in form prescribed by Sec. 472.210 RSMo 1959. On May 4, 1961, the probate court entered an order granting an appeal to the circuit court and ordering that all papers pertaining to the matter be transferred to said court. The transcript was filed in circuit court on that date.

No provision appears in the probate code pertaining to a court order granting an appeal. Under the provisions of the law, as it existed prior to enactment of the new code, an appeal was considered to have been ‘‘taken”, completed, when the statutory affidavit was filed in probate court. In Lewellyn v. Lewellyn, 87 Mo.App. 9, 14, the court held: “The filing of the affidavit for the appeal ousted the probate court of jurisdiction of the cause and transferred it to the circuit court”. To the same effect is Bensley v. Haeberle, 20 Mo.App. 648, 651-652.

The new statute, Sec. 472.240, is slightly different from the old, which provided that the probate clerk should certify the transcript to the circuit court. In the new the following has been added: “ * * * as ordered in writing by the appellant or the respondent”. Those words do not have the effect of changing the time when jurisdiction of the circuit court attaches. The legislature, when the statute was enacted, must have had in mind the existing law, as heretofore stated. The above wording was added, probably, in order to obviate the necessity of certifying all of the records when only certain were needed. The words are directory and are obviously not intended to effect such a change in the law as to divest the circuit court of jurisdiction, which it had already obtained by the filing of the affidavit. A reading of the remainder of the section would seem to confirm this view. Furthermore, it does not appear that plaintiff has been prejudiced in any manner because the transcript was not certified to the circuit court sooner. Plaintiff, at any time, as provided by statute, could have directed the clerk to certify the transcript. No doubt he would have done so had he believed that he was prejudiced by delay. The motion was properly overruled.

Plaintiff’s testimony was the only evidence offered in circuit court. He stated that, in 1959, and for many years prior thereto, he and his deceased brother, Herbert, had a custom whereby they exchanged farm work and implements; that they kept no records of such exchanges; that, at any time plaintiff needed deceased’s services, witness knew that they would be available even without asking; that, in 1959, deceased requested plaintiff to pick and shell about 180 acres (or more) of corn; that deceased furnished two barrels of gasoline and plaintiff furnished the remainder that was used in the operation; that plaintiff used his own equipment; that the customary and “going” charge for such services in that community, on a per acre and per bushel basis, was $1350; that, when he did the work, he had no thought or expectation of “charging” deceased for such services; that he did not consider his brother obligated to him in any way, and did not expect to or think of billing him therefor in dollars and cents.

However, he stated that he did, at that time, expect deceased to work for him at some future time when his services might be needed; that, on what should have been the day when the work would have been completed, deceased was injured and the work was finished on the next day; that his brother was killed and that, knowing that he would receive no services in return for his work and the use of his equipment, he decided to file a demand against the estate for his services.

Defendant contends that the judgment cannot stand because the evidence clearly demonstrated that plaintiff had no intention to make a charge against deceased therefor at the time the services were rendered. It is not claimed that the parties occupied a family relationship, although they were brothers. It is not claimed that they lived in the same household or that they worked together in a joint enterprise. Each had his own separate farming operation. See 98 C.J.S. Work and Labor § 16, page 740. Therefore, if plaintiff had rendered the services here claimed without any request from his brother, the law would imply a promise, agreement, contract, or obligation, or an intention on the part of the recipient to pay therefor. 98 C.J.S. Work and Labor § 10, page 728. However, in this case, the uncontroverted evidence is that deceased requested plaintiff to perform the services. If the evidence had stopped at that point the judgment should stand unchallenged. Kolb v. Howard Corporation, 219 S.W.2d (Mo.App.) 856, 858.

But plaintiff went further and stated that, at the time he performed the services, he had no intention of making a charge therefor, that he did not consider that deceased was obligated to plaintiff. Defendant says that this is proof of the fact that, because of the relationship between the parties, neither expected that there should be compensation paid or received for the services, citing and relying on 98 C.J.S. Work and Labor § 14, page 738. A case in quantum meruit is made if the evidence discloses that the one who rendered the services did so under circumstances warranting a proper inference that he expected the recipient of the services to pay for them, and that the latter, in accepting the benefit of the services, was, or should have been aware that they were being performed with that expectation. Tomasso v. Sorbets, 147 S.W.2d (Mo.App.) 151, 152.

In answer to a question on cross examination as to whether he intended to make a charge either in money or services, plaintiff said, “Oh yes. * * * ” He further stated “well we were just more or less trading work. He had equipment that I used and would have used if he had lived.” He stated that, because of Herbert’s death and inability to work for him in return for these services, he was asking for payment on the basis of the “going” price for such services.

At the conclusion of the evidence the court said: “It may not be too clear from the evidence, but it’s clear to me that these brothers were exchanging work and when he rendered the services he knew and felt that if his brother lived he would pay him back whatever he was ahead”.

The evidence was heard by the court without the aid of a jury. We cannot say that the judgment is clearly erroneous. There is sufficient evidence to support it.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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


text:
    C. T. RENTFRO and Mary Rentfro, Plaintiffs-Appellants, v. WHEELOCK BROTHERS, INC., Defendant-Respondent.
    No. 23441.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1962.

      Dennis G. Muller, Kansas City, for appellants.
    Heilbron & Powell, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiffs are the owners of a home located on the southeast side of Argentine Boulevard, near tenth street, in Kansas City, Kansas. Defendant owned a tractor-trailer truck which was, on June 5, 1959, being operated by defendant’s servant in front of plaintiff’s home, northeasterly along Argentine, when a Chinese elm tree, located in the parkway in front of plaintiffs’ home,, was struck by the trailer. Plaintiffs sued defendant for $500 damages. Trial to the court resulted in findings and a judgment for defendant. Plaintiffs appeal.

Mr. Rentfro testified to the effect that he is a trained and qualified tree surgeon; that, in the parkway in front of his home, some two to three feet from the curbing, there was a tree, some 18 inches in diameter, 25 to 30 feet in height, with a limb 6 inches in diameter extending out into the street 10 or 12 feet; that the tree was healthy, symmetrical, and about 18 years old; that witness was in his back yard when he saw defendant’s tractor-trailer truck come from the 10th street intersection, northeasterly along Argentine; that it struck the protruding limb of the above mentioned tree, breaking it off; that the wound extended into the heart of the tree and was 15 inches in width and three feet in length; that he treated it by trimming the edges of the wound so as to permit proper healing, by applications to the wound to prevent infection, and by topping it to promote growth of the trunk and faster healing. He stated that it would take from 10 to 12 years for the tree to fully recover; that it would require top pruning each year, and twice per year application of disinfectants ; that the cost of treatments would be $6 per year for disinfecting and $25 per year for prune topping; that the life of such a tree should be from 50 to 60 years; that the reasonable cost of raising the tree to its growth at the time of the injury would be $300, and the cost of replacement $1000; that, as to the difference in value of the real estate immediately before and after the occurrence “there wasn’t much difference”.

Mr. Walker, defendant’s operator, stated that trucks similar to defendant’s used the street in question extensively; that he brought the truck to a stop at the 10th street intersection, then proceeded through the intersection; that the trailer was empty and he pulled to the curb in front of plaintiffs’ house to check his bills; that he saw the limb extending over the street before • he pulled over; that he thought he had plenty of room to pass under it; that his -trailer, the front part of which struck the 'limb, was 12 feet in height; that he pulled •over to within six feet of the curb; that the front of the trailer struck and broke the limb; that he stopped, the trailer being empty, within 10 feet thereafter; that, after “the police came, he moved the truck farther up and stopped within two feet of the curb. He also stated that he had seen the tree since that time and that it looks healthy and -is growing. Mr. Rentfro also stated that -the tree was making a satisfactory recovery .and was healing.

The court found that plaintiff had suffered no substantial damages, and that defendant’s operator was guilty of no negligence. Under the provisions of Section 510.310(4) RSMo 1959, V.A.M.S., in cases tried to the court, we must give due regard to the opportunity of the trial court to judge of the credibility of the witnesses, and we may not set aside the judgment unless it is clearly erroneous. Lindsey v. Rupp, Mo.App., 316 S.W.2d 651, 652.

A parkway is a part of the public •street, or easement. Dunn v. City of Emporia, 181 Kan. 334, 311 P.2d 296, 300.

However, an owner holds rights to trees -planted to adorn and improve his property, • and growing in the parkway, subject to the paramount right of the public to use -the street. It is an ownership which gives "him the legal right to prevent an unauthorized and unjustified destruction of the trees "by officers as well as by others. City of Paola v. Wentz, 79 Kan. 148, 98 P. 775, 777; Heinzelman v. State Highway Commission of Kansas, 188 Kan. 129, 132, 360 P.2d 1114.

See also: 64 C.J.S. Municipal Corporations § 1701, page 97; Rights & Remedies •of Abutting Owners, par. 1701; Murtaugh v. Chicago Motor Coach Co., 269 Ill.App. 290, 292, 293; McAntire v. Joplin Telephone Co., 75 Mo.App. 535, 539; Reinhoff v. Springfield Gas & Electric Co., 177 Mo.App. 417, 162 S.W. 761, 762.

Plaintiffs had the right to maintain an action for damages caused by the negligence of defendant and resulting in injury to the tree here involved.

The judgment should be affirmed unless it appears from the record that defendant was guilty of negligence as a matter of law. In Weber v. Wilson, (1960) 187 Kan. 214, 219, 356 P.2d 659, 663, the Supreme Court of Kansas said:

“Whether a defendant is guilty of actionable negligence is ordinarily a question of fact for the jury, it being left to it under proper instructions whether the defendant acted with reasonable care under the particular circumstances of the case. It is only where the evidence is so clear that the minds of reasonable prudent persons could arrive at only one conclusion that a trial court is permitted to declare whether a defendant was negligent. [Emphasis added]. Sincere and impartial persons of equal intelligence frequently draw different conclusions as to negligence from the same identical facts. Where it is possible such persons may so differ, the law commits the decision to the jury on the theory it may resolve the differences and reach a unanimous decision.”

In Bishop v. Huffman, 177 Kan. 256, 257, 259, 278 P.2d 588, 590, the court said:

“It is common knowledge that persons of equal intelligence, sincerity and impartiality frequently draw wholly different inferences from the same identical facts. This is not only true of jurors; the same thing is equally true of judges. * * * One juror may believe the inferences to be drawn from identical facts disclose negligence. Another may believe precisely the opposite. * * * ”

The Missouri law with regard to this subject does not differ materially from that of Kansas. In Fortner v. St. Louis Missouri Public Service Co., 244 S.W.2d (Mo.) 10, 13, the court said: “Negligence is ordinarily a question for the jury. * * * Negligence depends upon the surrounding circumstances, as well as the particular conduct involved, because an act or omission which would clearly be negligence in some circumstances might not be so in other situations.” In Hamilton v. Ross, 304 S.W.2d (Mo.) 812, the last above quoted declarations are reiterated.

In this case, all facts and inferences reasonably to be drawn from the testimony must be resolved in favor of defendant. Bishop v. Huffman, supra; Mathis v. Public School Dist. 103, Johnson County, 175 Kan. 453, 264 P.2d 1082.

The facts here are that defendant’s agent was operating the tractor-trailer truck along a much travelled public street in a lawful manner. We must infer that he was travel-ling at a reasonable rate of speed under the circumstances there existing. He determined to drive to the side of the street, stop, and inspect his bills. The trailer was empty and was 12 feet in height. He saw the tree limb extending out over the street but said he believed he had ample room to pass under it. He knew his trailer was 12 feet high and Mr. Rentfro testified that he thought the limb was 15 feet high. If a man who owned the property abutting on the parkway where the tree grew, and who had lived there for many years, caring for and observing the tree and its protruding limb, believed it to be 15 feet above the ground, can it be said that all reasonable minds must believe that the truck driver was negligent in attempting to drive his vehicle under it? From appearances, the limb, according to the only testimony on that point, was 3 feet higher than the top of the trailer. Furthermore, the limb overhung a busy street along and over which many motor vehicles similar to that of defendant customarily passed. All of these circumstances must be taken into consideration in determining the question of the driver’s negligence as a matter of law.

We cannot hold that all reasonable ftiinds must have believed, under the facts and circumstances here shown, that the operator of the motor vehicle was guilty of negligence in attempting to drive under the limb, as he did, with his vehicle 6 feet from the curb; nor can we hold that the judgment of the trial, court is clearly erroneous.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


text:
    MISSOURI REAL ESTATE COMMISSION, Respondent-Plaintiff, v. Robert L. WOODSON, Appellant-Defendant.
    No. 23677.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Robert L. Woodson, Kansas City, Mo., pro se.
    Thomas F. Eagleton, Atty. Gen., and Julian O’Malley, Asst. Atty. Gen., for respondent Missouri Real Estate Commission.
   SPERRY, Commissioner.

This case was instituted by the Missouri Real Estate Commission for the purpose of inquiring into the conduct of defendant in . his business as a real estate broker and if, in plaintiff’s opinion, such action were justified, then in disciplining defendant because of the violation of the provisions of chapter 339, R.S.Mo.1959. After having had an extended hearing, at which time both sides to the controversy submitted evidence, the commission found that defendant had been guilty of fraud and misconduct, in violation of Section 339.100, subsection (7) R.S. Mo.1959, V.A.M.S., and revoked his license. The circuit court, on appeal,’ affirmed the judgment. Defendant appeals to this court.

This case had its inception in the sale of an apartment house by defendant to Mrs. Connie Shepherd. She, later, sued him in fraud and deceit and had a substantial judgment, for actual and punitive damages, affirmed in her favor. Shepherd v. Woodson, 328 S.W.2d (Mo.) 1.

Chapter 339, R.S.Mo.1939, relates to the licensing, regulating and disciplining of those who seek to engage in buying, selling, financing, leasing, and in other activities in the real estate business, in Missouri.

Defendant was a licensed real estate broker and was employed by a duly licensed real estate agency. He was engaged in the business of buying and selling real estate for members of the public. For his services as agent in various transactions of this nature he was paid commissions.

In September, 1956, defendant’s brother, a doctor who lived in Kansas, requested him to look at an 8 unit apartment building located at 1212 East 44th Street, Kansas City, Missouri, with a view to its purchase for the doctor. Defendant stated that he inspected the building and, eventually, purchased it for his brother, and in his name, for $9500.00; that he proceeded to remodel and make repairs and betterments, preparing it for leasing; that, prior to repairs, defendant thought the building was worth $12500.-00; that more than $4000.00 was expended on it for repairs; that, in January, 1957, defendant’s brother suffered personal injuries and, as a result of financial reverses, desired to sell the property; that Mrs. Shepherd, who wished to purchase property of that character, was referred to defendant by his agency; that he showed her the property here involved and represented to her that it was then worth $16000.00, but that necessary remodelling and repairing would amount to $2500.00; that, after spending 40 minutes inspecting the property, she agreed to and did purchase it on contract at $16000.00, as it then stood.

Mrs. Shepherd stated that she met defendant at the real estate agency by whom he was employed as a salesman; that she informed him that she had $3500.00 to invest in income property in which she would also reside; that he showed her the property herein mentioned which, after 40 minutes of inspection, she contracted to purchase for $16000.00, and to finish repairs thereon at her own expense.

She further stated that she had never, theretofore, purchased any real estate; that she was a beauty shop operator, which was her sole previous business experience; that she had never previously looked at real estate with a view to its purchase; that she believed that she could put her confidence and trust in a real estate agent, to advise her with skill and fidelity so as to prevent her from going “way over your head with something like I did”; that she confidently relied on statements made by defendant with respect to cash value and other aspects of the property involved, and, so relying, purchased the property; that it was her first dealing with a real estate broker; that, but for her reliance on defendant’s representations and statements, she would not have purchased the real estate; that she did not discuss the property with any other person; that, while he showed her one or two other properties, he kept telling her that this was the best buy for her; that defendant signed the contract himself, as vendor, stating to purchaser that he was acting as a strawman.

Mr. Aull, sales manager of Truckers Realty Co., defendant’s former employer, stated that, after Mrs. Shepherd bought the property, she requested him to inspect it; that he did so; that it was a shell only; that there were no “units”, just a number of rooms, with plaster everywhere and plumbing stacked up in various places; that the property was not rentable. He qualified as a real estate salesman and appraiser and stated that, as of the date he viewed it, about a week after the sale had been completed, it was worth not to exceed $9000.00.

There was evidence from which the commission could have found that Mrs. Shepherd knew little or nothing about real estate-values, never before having bargained for' the purchase of any property; that she relied wholly on the representations made by defendant as to values; that he represented the value to be $16000.00; that she believed' such representations, acted upon same and bought the property for that price; that, in-fact, the property, at the time the representations were made, was worth not to-exceed $9000.00; that defendant then well-knew that the property was of a value farbelow that of $16000.00; and that he made representations of excessive values deliberately and intentionally, with the hope and expectation that Mrs. Shepherd would believe them and act thereon.

In this case the court, on appeal,, may not try the cause de novo. “We review the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the Commission; and by competent and substantial evidence, and if the Commission’s-findings are supported not contrary to the overwhelming weight of the evidence, the award is to be sustained.” Lake v. Midwest Packing Co., (Mo.) 301 S.W.2d 834, 835; Manning v. Manor Baking Co., 356 S.W.2d (Mo.App.) 505, 507. It was for the commission to evaluate the conflicting evidence and arrive at a decision as to the facts in this case. Manning v. Manor Baking Co.,, supra. We may not substitute our judgment for that of the commission but we can only determine whether the commission could' have reasonably made findings and reached its result upon consideration of all the evidence before it. Manning v. Manor Baking Co., supra. Upon a full consideration of all the record before us we are constrained to hold that the order and judgment of the-commission here is well supported by the record.

The commission evidently believed' from’ the evidence that defendant’s conduct constituted untrustworthy or improper,, fraudulent or dishonest dealings, or demonstrates bad faith or gross incompetence, as provided in subsection 7, Section 339.100, R.S. Mo.1959, supra.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All conpur.


author: HUNTER, Presiding Judge.

text:
    Mary P. CROSS (Claimant), Respondent, v. Kenneth CRABTREE, and American Motorists Insurance Company (Employer and Insurer), Appellants.
    No. 23728.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Herman M. Swafford, Alder & Morrison, Kansas City, for appellants.
    James W. Benjamin and Thomas E. Sims, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County at Kansas City affirming the award of the Industrial Commission of Missouri in favor of claimant-respondent, Mary P. Cross, allowing the maximum death benefits and burial expenses totaling $15,500 under the Workmen’s Compensation Act, of which sum only $2,771.43 had accrued at the time the present appeal was taken on June 18, 1962.

Since the amount in actual dispute for jurisdictional purposes is determined at the time an appeal is taken, this court has jurisdiction of the appeal. Snowbarger v. M. F. A. Central Cooperative, Mo.Sup., 317 S.W.2d 390; Section 477.040 RSMo 1959, V.A.M.S.

On this appeal only two basic questions are presented — namely, (1) whether there is sufficient competent and substantial evidence to sustain the award of the Industrial Commission that decedent was a statutory employee of Kenneth Crabtree; and (2) whether the finding of the Industrial Commission that the decedent’s annual earnings were determinable under Section 287.250(3) RSMo 1959, was erroneous.

The Industrial Commission’s findings are:

“We find from all of the evidence that the deceased employee, William B. Cross, was a statutory employee of Kenneth Crabtree on June 29, 1961; that he sustained an accident on said date arising out of and in the course of the said employment; and that as a result of said accident he sustained injuries which resulted in his death on the same day. Schwandt v. Witte, Mo.Sup., 346 S.W.2d 50; Simpson v. New Madrid Stave Co., 227 Mo.App. 331, 52 S.W.2d 615; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; Baker v. Iowa-Missouri Walnut Log Co., Mo.App., 270 S.W.2d 73; Montgomery v. Mine LaMotte Corp., Mo. Sup., 304 S.W.2d 885; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769.

“Respondent, Kenneth Crabtree, was a building contractor engaged in the erection of buildings, particularly houses, in the Kansas City area. During the latter part of June, 1961, he was building a house at 3200 Sunrise Slope, Independence, Missouri. It is not claimed that he was exempt from liability under the act by virtue of the provisions of Section 287.040(3) RSMo 1959. E. g. Bobbit v. Ehlers, Mo.App., 131 S.W.2d 900.

“The deceased, William B. Cross, Gerald A. Hughes, Edward E. Davidson, Hugh Thompson and one Riddle, were roofers engaged in roofing the house next door to 3200 Sunrise Slope. These men roofed houses for contractors in the Kansas City area. The group had no formal agreement between themselves but operated by rather clearly defined custom. Any member of the group could secure a roofing job from a contractor. All would then join laying the roof. On completion of the job the contractor would pay the man with whom he had dealt for the whole job. The amount so paid was determined by the number of squares of roofing laid in completing the job. The proceeds were then divided among the several workmen, each being paid pro tanto in accordance with the number of squares each had laid.

“On June 28, 1961, Crabtree came next door where the group was roofing. He talked to Gerald A. Hughes and asked him when they could start roofing the house he was erecting at 3200 Sunrise Slope. There is some evidence that he also talked to Cross, although Crabtree denied this. In any event, Cross (and possibly Hugh Thompson) commenced roofing the Crab-tree house the same afternoon. The next day, the rest of the group joined them on the job. On that day (June 29, 1961), Cross fell from the roof and sustained fatal injuries.

“Crabtree maintains that he may not be deemed a statutory employer under Section 287.050(1), RSMo 1959, because the work being done by Cross was not being done under contract. In this we do not agree. The statute does not specify the form of the contract that must be used. Simpson v. New Madrid Stave Co., supra, 52 S.W.2d 1, c. 616. We are of the opinion that the contract may be implied as well as expressed. We are unable to believe that an experienced contractor, one who had used this group before, was unaware of the customs of the trade in which he had so long been engaged.

“We find and believe that Cross, Hughes, Davidson, Thompson, et al were joint venturers; that they were subcontractors on the Crabtree job; and that respondent Crabtree was their statutory employer under the provisions of Section 287.040(1), RSMo 1959.

“We further find that Mary P. Cross, widow, was the sole, total dependent of William B. Cross at the time of his death.

“We find, further, that the employee had not been employed by the same employer continuously during the year next proceeding (sic) the injury. In accordance with Section 287.250(3) RSMo 1950, and the stipulation of the'parties (Tr. pp 62, 63), we find that the annual earnings of persons in the same class in the same employment and same location was $5,000.00 per year; that by reason thereof the employee’s average weekly wage is determined to be $96.15; and that the dependent widow is, therefore, entitled to death benefits of $45.00 per week for 333.33 weeks.”

Appellants’ first contention in substance is that claimant failed to prove either a contractual or statutory relationship between decedent and Kenneth Crabtree in order to support an employment status. Appellants deny there is any evidence sufficient to support a finding that decedent either individually or as a member of the working group had been employed either directly or indirectly by Crabtree to work on the house from which he fell to his death.

Our State Constitution, Article V, section 22, V.A.M.S., requires findings of the Industrial Commission must be supported by “competent and substantial evidence upon the whole record.” Hence, the rule is that the review of a compensation case is of the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the commission, and to determine whether the commission’s findings are supported by competent and substantial evidence, and are not contrary to the overwhelming weight of the evidence. Brown v. Anthony Manufacturing Company, Mo. Sup., en Banc, 311 S.W.2d 23; Snowbarger v. M. F. A. Central Co-Operative, Mo.Sup., 349 S.W.2d 224. It is the duty of the reviewing court to set aside the commission’s findings only if they are not so supported or if they are contrary to the overwhelming weight oí the evidence. Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61.

What does the whole record disclose to support the commission’s finding decedent was employed by Crabtree to help shingle the roof of the house from which he fell? Edward Eugene Davidson testified that he, Gerald Hughes, Hugh Thompson, Rolley, Riddle and the deceased were shingling the roof of the house next to the house Crabtree was building. They had done Crabtree’s work before. He came by the job and talked to Gerald ■ Hughes in Davidson’s presence and to Davidson. The other mentioned men including decedent were also on the roof working but according to Davidson were apparently not near enough to participate in this conversation. “He (Crabtree) * * * wanted to know when we could start it, he wanted us to shingle it.” * * * “Well, Gerald said to Mr. Hughes, he quoted back that he could get it started the next day. He would send somebody up there.” A short time later that day Hugh Thompson and decedent went over to the Crabtree house and started to work on it. The rest of the group that same day finished the house they had been roofing, and the next morning all of them, including decedent, worked on the roofing of the Crabtree house. It was while decedent was shingling the Crabtree house that he fell.

On cross-examination Davidson was asked, “And he and Mr. Hughes discussed, I suppose, who would come over there and work for him ? A. He wanted to know when we could all come and start his job, in so many words. * * * At this time it was your understanding he wanted all four of you over there. A. Oh, definitely, yes.” Davidson did not know whether Crabtree also spoke directly to decedent about the roofing work or who may have told decedent to work on the Crabtree house.

Gerald Hughes testified that on the day in question Bill (decedent) was closest to Crabtree when he came over to get them to get them to work on his roof. Hughes stated, “ * * * I believe he (Crabtree) seen Bill on this particular day. * * * Well, he (Bill) came over the roof and said he would like to go ahead over there and go to work. Q. You mean Crabtree? A. No, Bill come to me. We were trying to get one job done and he wanted to know if he could go over and start him and I said it didn’t make any difference to me. He (Bill) said Crabtree wanted to get it started. * * * When Crabtree first came over on the job next to his job, whom did he talk to? * * * I think pretty sure it was Bill Cross * * * because he was working on the side nearest to the garage at the time.”

Kenneth Crabtree testified that he was a building contractor and had been all his life. He would complete about 14 houses this year, 1961. He has no direct employees and employs subcontractors to shingle his houses. He did not know the specific individuals shingling the roof of his house. He had arranged the shingling by contacting Mr. Hughes more than a week before the accident. The house next door was constructed considerably ahead of his house and there was no roofing work being done next door at any time his house was being built. The roofing next door had already been done. He stated that he (Crabtree) was the general contractor on the house at 3217 Sunrise Slope and that he subcontracted its roofing. He acknowledged decedent was killed while roofing his house but denied employing decedent to roof the house, or authorizing anyone else to employ decedent on his behalf.

In addition to the above evidence concerning decedent’s employment by Crabtree the record is replete with testimony to the effect that this particular group of men had worked together as roofers for a long time and that it was their custom, as well as a custom followed by many in their trade, for any one in the roofing group to accept employment for the whole group when their services were requested by a builder. There was evidence to the effect that it is customary for more than one person to shingle a particular house. There was testimony that it didn’t matter which one of this particular group made the arrangement or which one was paid, for the money was divided by them according to the number of squares of shingles each laid on the particular roofing job. They were all union employees and they charged $5.75 a square for their individual work, the standard union rate. They worked only for employers who would pay this rate and also cover them with Workmen’s Compensation Insurance.

It is our view of the evidence that it amply supports the finding of the commission that deceased was employed by Crabtree to shingle his house. We agree with the commission that a contract of employment may be implied as well as expressed. 17 C.J.S. Contracts § 4, page 318. The evidence and its reasonable inferences support the conclusion that Crabtree’s conduct and statements had the effect of an offer to employ the group, including decedent, to shingle the named house and that this offer was known to decedent who, along with the others, in legal effect accepted it by going there and performing the work.

In their original answer to Mrs. Cross’s claim filed with the referee who tried the case appellants stated, “Further answering, employer and insuror state that William B. Cross was a statutory employee of said employer.” During the trial by leave of the referee appellants amended their answer by striking out this statement. Claimant’s counsel read into the record as evidence this statement in the original answer as an admission against interest, and urges that it alone comprises competent and substantial evidence that deceased was an employee of Crabtree. Appellants suggest numerous reasons why this “admission” has no probative value. We express difficulty in comprehending the asserted merit of these reasons. Since we have already determined that there is competent and substantial evidence, absent any consideration of this portion of' appellant’s original answer, to support the commission’s finding of a contract of employment of deceased by Crab-tree we need not express our views thereon. See, Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052(14); Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889(14).

Appellants also question the finding that deceased was a joint adventurer, a subcontractor, and that Crabtree was their statutory employer. Again, laying aside the effect of the original answerer’s statement read in evidence that “insuror and employer state that William B. Cross was a statutory employee of said employer” we conclude there was. competent and substantial evidence to support the finding.

In passing we note that appellants in their brief and at the trial conceded “that the work being done by the decedent Cross was a part of the regular business of Kenneth Crabtree, the alleged employer, and that the injury to the decedent occurred upon premises owned by Crabtree.” The statutory employment Section 287.040, RSMo 1959, V.A.M.S., admittedly enlarged the meaning of master and servant to include independent contractors (subcontractors) doing work on the premises owned by the'employer as a part of the regular business. conducted thereon. See, Montgomery v. Mine La Motte Corp., Mo.Sup., 304 S.W. 2d 885. Thusj even though deceased and those working in the group with him may háve been independent contractors they could still be the statutory employees of Crabtree by virtue of mentioned Section 287.040.

We come to appellants’ next contention — that decedent’s annual earnings are not to be determined'under Section 287.250 (3) RSMo 1959, V.A.M.S. The pertinent findings of fact of the commission on this point is, “We find, further, that the employee had not been employed by the same employer continuously during the year next proceeding (sic) the injury.” Is there competent and substantial evidence to support this finding? Upon our review of the record we have determined that there is.

No one contends that the decedent worked for one year for Crabtree. Nor does the evidence indicate that he worked for Hughes or anyone else continuously for a full year. Hughes’ testimony is to the general effect the group had no particular boss; often the general contractor just “talked to anyone, the closest one to them. * * * The other men have drawn checks on jobs as well as I have on a number of occasions.” Crabtree stated he had not started contacting Hughes until two or three months prior to this accident, and before that time had subcontracted with Frank Davidson. Taken as a whole the record strongly supports the mentioned finding of the commission.

Appellants suggest that the evidence reveals deceased was not a full time worker but limited himself in his employment to an annual earning of $1,200. On this subject the parties had stipulated that prior to “claimant’s (sic) death on June 29, 1961, he was drawing Social Security benefits under and subject to the provisions of that law from 1956 until the time of his death arid was permitted under the provisions of that law to earn up to $1,200 per year without losing the benefits of that law.” It was also stipulated at the trial that “persons of the same class and type of employment in this location were making an average of $5,000 or better in this same kind of roofing industry that Mr. Cross was in at the time of his death.”

Appellants concede that $5,000 'is the average earning of roofers, but seek to avoid the effect of their stipulation by saying it applies only to full time roofing employees and that deceased did not engage in full time employment or he would not have been eligible for social security. They point to Frank Davidson’s testimony that in 1960 when Cross worked for him before he retired, decedent earned $1,106.55.

Stripped to its essentials appellants’ contention is that decedent was in the employ of the same business operation for the full year next preceding his death; had not any other determinable income during that period; and that his actual earnings of no more than $1,200 constitute his annual earnings as contemplated by the Workmen’s Compensation Law rather than the formula established in Section 287.250(3) RSMo 1959, V.A.M.S. -

We find no merit in this contention of appellants. There is no evidence which the commission was bound to accept that Frank Davidson and Gerald Hughes were the same legal entity or the same employer of deceased. While Crabtree in an unresponsive answer to a question asked spoke of them as operating a partnership, much other credible evidence adduced is to the effect that Frank Davidson and Gerald Hughes were not operating a partnership. Additionally, the record does not demonstrate that decedent did not in fact have employments other than with these two men during the year in question.

Section 287.250 RSMo 1959, V.A. M.S., determines the wage rate and compensation allowances under the Workmen’s Compensation Act. The proper method of determining which subsection thereof is to be used in a particular case is to commence with the first subsection and to descend in numerical order under these subsections until that wage rate provision that applies under the facts of the case is found. Bietsch v. Midwest Piping & Supply Co., Mo.App., 86 S.W.2d 187.

The first two subsections of Section 287.250 are not applicable to the facts of this case because of the specific requirement therein that the injured party be “in the employment of the same employer continuously during the year next preceding the injury”. .

Subsection 3 of Section 287.250 provides: “If the injured person has not been, engaged, in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same employment and same location (or if that be impracticable, of neighboring employments of the same kind) have earned during such period;” It is clear that this subsection is the controlling one under the facts found by the commission, which facts we have deemed to be supported by competent and substantial evidence upon the whole record. See, Zasslow v. Service Blue Print Co., Mo.App., 288 S.W.2d 377.

In view of the provisions of subsection 3 of Section 287.250 which apply to the facts before us it is immaterial that the deceased was drawing social security or may have actually earned no more than $1,200 in the year next preceding his injury and death. This subsection establishes a comparative method of computation rather than one based on actual earnings. Werner v. Pioneer Cooperage Co., Mo.App., 155 S.W.2d 319; Casebolt v. International Life Ins. Co., Mo.App., 42 S.W.2d 939; Edwards v. Ethyl Gasoline Corp., 342 Mo. 98, 112 S.W.2d 555. The Industrial .Commission did not err in its application of that subsection in its determination of the amount of the death benefit.

Appellants’ final contention is that by operation of law the exclusionary provisions of Section 287.040(3) apply to 'Crab-tree as owner of the premises and hence he cannot be held to be a statutory employee of Cross under Section 287.010. We do not examine the merits of this contention. Appellants’ counsel concedes' this contention •(defense) is raised for the first time on this appeal. It was not raised or presented to the referee, the Industrial Commission or the circuit court. The Industrial Commis-si on in its findings noted, “It is not claimed that he (Cross) was exempt from liability-under the act by virtue of the provisions of Section 287.040(3) RSMo 1959.” By failing to present this contention prior to this appeal, appellants are precluded from appellate review thereof. See, Nichols v. Davidson Hotel Co., Mo.App., 333 S.W.2d 536, 542, and cases cited therein.

We have considered the entire record in the light of all of appellants’ contentions properly before us on this appeal and have found them not meritorious. The judgment certainly is not contrary to the overwhelming weight of the evidence. Accordingly, the judgment is affirmed.

All concur.


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    Clifford O. JOHNSON and Beverly Johnson, Plaintiffs-Respondents, v. KANSAS CITY FIRE & MARINE INSURANCE COMPANY, a corporation, Appellant-Defendant.
    No. 23611.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1962.
    Dwight L. Larison, David R. Odegard, Houts, James, Randall, Hogsett & Mc-Canse, Kansas City, for appellant.
    Martin Anderson, Kansas City, for respondents.
   SPERRY, Commissioner.

Plaintiffs, husband and wife, sued defendant insurance company on a “homeowners” insurance policy issued by defendant on the home of plaintiffs. The policy covered loss of personal property on the premises. The case was tried to the court, resulting in a judgment for plaintiffs in the sum of $779.00. Defendant appeals.

It is admitted that the policy, as issued, was in full force at the time the loss occurred, but defendant contends that the loss claimed was not due to a hazard covered by the terms of the policy, but was due to damage by flood waters, a hazard not covered by the policy.

The clause of the policy upon which plaintiffs rely is as follows:

“Perils insured against * * *
“Windstorm and Hail, excluding:
“(a) * * *
“(b) loss to the interior of the building^) or the property covered therein ■ caused by rain, snow, sand or dust, whether driven by wind or not, unless the building(s) covered or containing the property covered shall first sustain an actual damage to roof or walls by the direct force of wind or hail and then this Company shall be liable for loss to the interior of the building (s) or the property covered therein as may be caused by rain, snow, sand or dust entering the building(s) through openings in the roof or walls made by direct action of wind or hail.”

Mr. Johnson testified to the effect that he had moved into the home shortly prior to the occurrence hereinafter described; that many of his household and personal effects were packed in cardboard cartons and stored in the basement, including clothing, books, toys, appliances, bedding, etc; that the cartons, and an electric stove, were setting on the floor of the basement, where they had been placed when the family moved in; that, on July 30, 1958 a violent wind and rainstorm arose; that he heard the noise and proceeded to inspect and secure the doors and windows of the house; that he heard a metal patio table smash against the house, at the back; that he went to the basement to see that it was secure; that he found the basement door open and rainwater being blown into the basement onto the cartons of goods; that water was running down the steps of the basement entrance and into the open door of the basement; that the water eventually got under the cartons, but at that time had no depth; that the door was broken and pulled away from its “keeper”; that, before the storm occurred, he had been in the basement on that day and the door was closed.

Plaintiff’s exhibit 2 was introduced in evidence and was identified by plaintiff as being a picture of a broken plank on the door. It shows the broken woodwork, splintered and split, with a metal plate still attached by one screw, but the other screw had been pulled out of the wood and is not shown. The metal plate was identified as being the keeper. Plaintiff stated that the wind blew the door open during the storm and he found that condition, as to the door and the keeper, when he went down to the basement at about 9 :00 p. m., July 30, 1958; that the rain was coming in, “I got wet, it was a heavy rain, it eventually got under the cartons”; that it continued to rain hard for over an hour. He testified extensively concerning the number of cartons, their contents and value, and the character and value of other property damaged. He further stated that, since repairs had been made to the door, no water had come into tire basement although there had been rain.

On cross-examination Mr. Johnson stated that, since he could not close the door, rain came directly in through the force of the wind, and from the basement entranceway where it had fallen; that the water coming from the basement entrance “well” was surface water because it first fell on the surface of the entranceway; that water eventually accumulated in the basement to a depth of 18 inches; that all of it came in the form of rainwater through the broken basement door; that the door was never closed and it rained all night; that there was a drain in the basement and also one in the stairwell; that the basement drain was working; that he saw no water flowing into the stairwell from the surrounding ground area; that he had never, knowingly, testified differently on this point.

Mr. Harris, defendant’s agent, stated that he inspected the premises within a few days after the loss was reported; that he found water marks on the basement door 19 inches high; that he saw no evidence in the neighborhood indicating that there had been a severe wind storm; that the basement well was higher than the surrounding area; that the door keeper was broken at that time.

Defendant’s witness Benberg is an architect and engineer. He stated that the ground slopes away from the stairwell, which has a curb two inches higher than the ground immediately surrounding it: that the land slopes from the west toward the area between the buildings, forming “more or less” of a waterway west of the basement entrance. He testified to technical facts which tend to show that the wind, at the velocity shown by weather reports on that date, could not have exerted enough pressure on the door (it being largely below the surface) to break the keeper and push the door open; that 18 inches of water standing in the stairwell would have exerted sufficient pressure to break the door open. He stated that water standing one or two inches deep would not have exerted sufficient pressure to have broken the door.

Mr. McKee, defendant’s agent, stated that plaintiff called defendant’s office and reported water damage to property in his basement; that witness told plaintiff that the policy did not cover such a loss unless the door had been breached by wind; that plaintiff made no claim at that time that such a break had occurred; that, later, plaintiff submitted a wind damage claim.

Mrs. Johnson’s deposition was introduced in evidence and she stated that when she got to the basement, after hearing a noise, the door had blown open and water was blowing in, “well, it was just trickling in”.

In rendering decision for plaintiffs the trial court made the following pronouncement :

“The defendant’s answer recited an affirmative defense in that ‘plaintiff’s damages, if any, were caused by flood waters, a hazard excluded by the terms of plaintiff’s policy.’ The evidence does not show that the defendant has established this defense, and there is no proof that flood waters, as such, caused the damage in question. This being an affirmative defense, and the burden being upon the defendant, this issue must necessarily be decided in plaintiff’s favor. See Armon v. Aetna Ins. Co. [369 Pa. 465], 87 A.2d 302; Pearl Assurance Co. v. Stacey Bros. [6 Cir.], 114 F.2d 702; Loyola University v. Sun Underwriters Ins. Co. [D.C.], 93 F.Supp. 186 [5 Cir.], affirmed 196 F.2d 169.”

It clearly appeared from the testimony of Mr. and Mrs. Johnson that a windstorm preceded the damage. They both said that the wind blew the keeper off and blew the door open. No other reasonable explanation appears for the condition of the door being as it was when these witnesses first arrived at the basement and found the door open, water blowing in and beginning to trickle under the merchandise.

Opposed to this, defendant offered a masb of scientific data tending to show that the force of the wind could not have blown the door open but that an accumulation of 18 inches of water in the stairwell could have forced it open; but it failed to show any such accumulation of water in the basement when the door was first found open and the keeper broken. As the trial court observed, defendant pleaded an affirmative defense and relied on it throughout. It failed completely to establish such defense by substantial evidence. See Armon v. Aetna Insurance Company, 369 Pa. 465, 87 A.2d 302, 304. In any event, the trial court was not bound to find for defendant on its evidence, and we may not set aside the judgment unless it is clearly erroneous. We cannot say that the judgment is erroneous.

The court fully understood the issues and properly resolved them.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


text:
    Helen MILLIKEN, Appellant, v. TRIANON HOTEL COMPANY, Respondent.
    No. 23649.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Kranitz & Kranitz, St. Joseph, Jay Ma-cey Rosenblum, Kansas City, for appellant.
    John R. Gibson, F. Burck Bailey, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is an appeal by plaintiff, Helen Milliken, from the judgment of the trial court setting aside her verdict and judgment for $13,185 obtained against defendant, Trianon Hotel Company, and granting a new trial. The numerous contentions of error on this appeal include a challenge of the correctness of plaintiff’s verdict directing instruction and the sufficiency of the evidence to make a submissible case.

In her petition plaintiff alleged, among other things, that on January 3, 1959, about 3:00 a.m. while in the process of leaving the Muehlebach Hotel she “made her way down the stairs toward the main lobby portion of the hotel, and in doing so, stepped upon a soapy and/or wet slippery substance on or about the second step of the top flight of the stairs, when and where * * * she was caused to slip, slide and violently fall * * * ” — all due to the alleged negligence of the defendant in permitting such a covering of soap and/or water to be and remain on the stairway and the adjoining floor causing them to be dangerous and unsafe.

At the jury trial plaintiff testified that she, her friend, Mrs. Hyde, and a male acquaintance, entered the hotel, located in downtown Kansas City and owned by defendant, to visit another friend, Mr. William Roundtree, who was staying there. The three of them entered the lobby portion of the hotel from its Coffee Shop, where they had dined. They proceeded through the lobby, west through a wide hall, and on up the steps in question to an elevator which they rode to Mr. Roundtree’s floor. At that time plaintiff observed nothing unusual going on.

Some fifteen or twenty minutes later she, Mrs. Hyde, and their acquaintance left Mr. Roundtree’s room and proceeded to leave the hotel. They descended in the elevator, proceeded easterly and approached the mentioned stairs which lay in an east-west direction. Plaintiff was ahead, with Mrs. Hyde and the man behind her in that order. There were two men in work-uniform clothes there by the south wall, both either on the top landing or one on the steps and the other on the top landing. Near them on the far south side were a bucket and mop. The men were blocking plaintiff’s way. Mrs. Hyde said, “ ‘They are working here’, she said, ‘We will take the other side’ ”.

We refer to pertinent portions of plaintiff’s testimony describing her fall. “There is only one way to return, we came down on the elevator, turned to our right, and there is two series of steps — it has a divided rail in the center. * * * they have a blond, light brown surface to them, rather mottled. * * * it’s divided by three railings. * * * The far railing is on the south side, then there is a center railing dividing the two flights of stairs, and then one on the north side. * * * I took the north railing. * * * I walked up to the steps, took ahold of the railing, and stepped down and just slipped. * * * Q. Do you know what caused you to slip? * * * A. The steps were wet”.

After plaintiff’s fall down the flight of steps Mrs. Hyde spoke, “ ‘Why look’ she said, ‘the steps are wet’, and I actually had to look and keep looking before I realized they were wet. The stone is— whatever the surface or composition of the floor is, it is of such a color that you hardly see it, and the lights are so bright in there that there is almost a glare. * * * I had to look intently before I could see the wetness there because the glare is so bright in there and the coloring of the floor is so neutral like that it is very difficult for you to see. * * * I could see wetness. * * * it was wet, there was no doubt about it.”

Plaintiff described the condition of her clothes as a result of her fall. “Well, they were dirty and they were black, and they had some white streaks over them, and smudges of white. * * * There was a wetness there (on the clothes) and there was some white streaks, and white looking places over the black material. * * * some soil, possibly could have been dirt, and it brushed off, but the white streaks wouldn’t all come off. * * * (These streaks and whiteness were) on both the coat and dress. * * * On the underclothing I really don’t know. It was tom and soiled, and I threw it away.”

Mrs. Hyde’s testimony in general corroborated plaintiff’s version of the occurrence. She stated plaintiff “ * * * put her hand on the rail and took about the first step and her foot slipped out from underneath her and she tried to hold on to the rail, and she finally just fell on the steps. * * * I said, ‘Well, no wonder you fell, they are wet’. ⅜ * * They were just wet-like all over. * * ⅜ All the steps. * * * She had like mud and a sort of a white substance on her clothing. Q. * * * (were the clothes wet?) A. Oh, yes, definitely. You could see it was on her dress and coat. * * * a good sized area.”

As a result of the fall plaintiff’s foot was broken, and she suffered other injuries.

Challenged verdict directing Instruction Number One given on behalf of plaintiff reads:

“The Court instructs the jury that if you find and believe from the evidence that on January 3rd, 1959, at approximately 3 :00 to 3 :30 a. m., plaintiff was a customer or guest, either or both, of defendant’s Hotel Muehle-bach, it then became the duty of the defendant to exercise ordinary care to keep the premises, including the Wyandotte Street lobby, and the stairs leading from said Wyandotte Street lobby and entrance, to the central, main lobby of the hotel, in a reasonably safe condition for use of defendant’s customers and guests.

“The Court further instructs the jury that if you find and believe from the evidence that on the occasion mentioned, the defendant’s agents had mopped or washed a portion of the north half of the first flight of stairs immediately below the level of the Wyandotte Street lobby, which portion plaintiff was intending to descend, leaving a wet and slippery substance on said stairs, and that the premises, by reason of the presence of said wet and slippery substance on said stairs, if any, were not reasonably safe, and that plaintiff was not warned of the presence of said substance, if you so find, and if you further find that defendant, by and through its agents, servants and employees, by the exercise of ordinary care knew, or could have known, of the presence of said wet and slippery substance in time to have removed or remedied the same or to have given plaintiff warning of the presence of said wet and slippery substance, but that the defendant failed to have done so, if you so find, and if you further find that such failure, if any, was negligence and that plaintiff stepped down upon portions of the wet and slippery stairs and was caused to fall and be injured as the direct result of such negligence, if any, then the Court instructs the jury that plaintiff is entitled to recover and your verdict must be in favor of the plaintiff and against the defendant, unless you find the plaintiff guilty of contributory negligence as submitted in other instructions herein.”

It is defendant’s contention that the trial court properly granted a new trial because Instruction Number One (a) contained in its first paragraph an incomplete and erroneous abstract statement of the law for it ignored defendant’s duty to warn only of dangers and conditions that are not open and obvious; (b) failed to require a finding that the condition of the steps should or would not have been known to customers in the exercise of ordinary care, and ignored the open and obvious condition of the stairway; and (c) failed to require a finding that plaintiff had no knowledge of the dangerous condition.

Slip and fall cases of the general type of that before us have been numerous in this state and the applicable law is well established. It is the general duty of the hotel owner to use reasonable care for the safety of an invitee using the premises. See, Annotation, Slippery Steps—Injury, 63 A.L.R.2d 738. The rule is aptly stated in 65 C.J.S. Negligence § 45b, page 526, “The owner, occupant, or person in charge of premises owes to invitees or business visitors thereon the duty of exercising reasonable care to keep the premises in a reasonably safe and suitable condition, or of warning invitees or business visitors of hidden or concealed perils of which he knows or should know in the exercise of reasonable care, so that those whom he has invited to enter upon or use his property shall not be unnecessarily or unreasonably exposed to danger.”

Further illumination of the scope of this duty is stated by our Supreme Court in Stafford v. Fred Wolferman, Inc., 307 S.W.2d 468: “The basis of the defendant-proprietor’s liability is defendant’s superior knowledge of an unreasonable risk of harm of which the invitee does not or in the exercise of ordinary care should not know. Such a defendant is not liable for injuries due to dangers which are obvious, or as well known to plaintiff as to defendant. And in such circumstances there is no duty to warn because the invitee has the information which would be conveyed by a warning.” (Emphasis ours.) In Wattels v. Marre, Mo.Sup., 303 S.W.2d 9, 14, 66 A.L.R. 2d 433, Judge Dalton speaking for the court expressed it thusly: “The basis of defendants’ liability as possessors of land for injuries sustained by their invitees, is defendants’ superior knowledge of an unreasonable risk of harm of which the invitee does not or in the exercise of ordinary care would not know,’’ citing Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756, 758(4). (Emphasis ours.) See, also, Murray v. Ralph D’Oench Company, 347 Mo. 365, 371, 147 S.W.2d 623, 626; Heine v. John R. Thompson Company, Mo.Sup., 330 S.W.2d 867.

Plaintiff in Instruction Number One overstated and incorrectly stated the extent of defendant’s duty by failing to note it required defendant, as to unsafe premises and conditions actually or constructively known to defendant, to warn plaintiff only of those dangers that are not known and would not be known to one exercising ordinary care— for example, of dangers that are not open and obvious to an invitee using the premises. The partial and incorrect statement of the duty in the instruction is of such a nature as to mislead a jury and to cause it to believe defendant’s duty is greater than it is.

In the case of Stafford v. Fred Wolfer-man, Inc., supra, the questioned instruction was quite like the present one. In holding it reversibly erroneous the court stated, 307 S.W.2d l. c. 476: “To the extent the drafter of the instruction undertook to extensively and abstractly state defendant’s duty as a legal premise to the submission of plaintiff’s case, he should have correctly and completely stated the extent of the duty.”

Turning to the remainder of Instruction Number One, it fails to require the jury to find (1) that the asserted dangerous condition of the steps would not have been known to an invitee—user of the steps, such as plaintiff, in the exercise of ordinary care and (2) that plaintiff did not know of such dangerous condition.

Lack of actual or constructive notice of the dangerous condition is an essential element of a business invitee’s right to recover, Wilkins v. Allied Stores of Missouri, Mo.Sup., 308 S.W.2d 623-628; Heine v. John R. Thompson Co., supra. Certainly if the dangers and unsafe conditions are open and obvious to an invitee, as defendant insists the evidence demonstrates, there would be no duty to warn him of them, and this because the invitee has the information which would be conveyed by a warning. As stated by Judge Cave in Schwartz v. S. S. Kresge Company, 238 Mo.App. 1165, 185 S.W.2d 37, 40, “ * * * it was necessary for plaintiff, as an essential part of her case, to prove and submit the proposition that she had no knowledge of the existence of the danger and that defendants breached their duty by not warning her of it.” See, also, Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278, 279; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, 373. We are constrained by these authorities to rule that the instruction is prejudicially erroneous.

Nor is the error cured or the prejudice removed by the reference to another instruction on contributory negligence. Although all instructions in a case are to be read as a whole, it is the rule that if an instruction purporting to cover the whole case and authorizing a verdict, leaves out a fact, essential to a recovery, it is not cured by another instruction requiring a finding of such fact—and this because the instructions are in conflict, with a naturally resulting confusing of the jury. McDaniel v. McDaniel, Mo.Sup., En Banc, 305 S.W.2d 461, 467.

Additionally, a fact necessary to plaintiff’s case is one on which plaintiff has the burden of proof, and plaintiff must carry and satisfy that burden. The omissions in the verdict finding instruction do not go merely to the defense of contributory negligence. They are essential elements of plaintiff’s case. To say a fact essential to a plaintiff’s cause but omitted from his verdict directing instruction is supplied by reference to a contributory negligence instruction would have the unsound effect of shifting the burden of proof as to that fact. Although no further reason is needed, we note the literal language of the contributory negligence instruction does not require the finding of any fact that would necessarily establish the omitted elements of plaintiff’s verdict directing instruction as to lack of actual or constructive notice of the alleged dangerous condition.

Defendant contends plaintiff was guilty of contributory negligence as a matter of law for proceeding as she did to use the landing and steps after she had observed the two workmen, the bucket, and could observe the condition of the steps and landing if she had looked. Defendant in effect claims that whatever danger there may have been was open and apparent to anyone who was in the exercise of ordinary care for his or her own safety. Without going into the details of her testimony about looking (for we realize that subject may be more fully explored on retrial) it is our ruling that on the record before us she was not guilty of contributory negligence as a matter of law, and the trial judge correctly submitted the issue of her contributory negligence to the jury.

Defendant insists that in no event should this case be remanded for a new trial for the reason that plaintiff failed to make a submissible case under all the facts adduced in evidence. The trial judge believed a submissible case had been made and consistently so ruled. He ordered a new trial. Where the trial judge has ordered a new trial for error committed during the trial, and the question of the sufficiency of the evidence to make a submissible case is very close, the furtherance of justice requires a case should not be reversed without remanding unless the appellate court is convinced the facts are such a recovery cannot be had upon proper retrial. See, Yarrington v. Lininger, Mo.Sup., 327 S.W.2d 104, 111(15); La Tour v. Pevely Dairy Co., Mo.App., 349 S.W.2d 436(5); Boland v. Dehm, Mo.App., 348 S.W.2d 603, 607(7).

Upon our independent examination of the transcript we have concluded that in the interests of justice the cause should be remanded for a new trial. We conclude for reasonsi not discussed here but mentioned in appellant’s brief that the question of sub-missibility is close. On a new trial the evidence may be more thoroughly or differently presented. The trial court will have an opportunity to pass on the question of submissibility on the record then before him, as will the appellate court if an appeal should be taken.

Appellant has presented other contentions of error, including excessiveness of the verdict. We need not rule these contentions as they may not recur on the new trial.

The judgment is affirmed and the cause is remanded for a new trial.

All concur.


author: BROADDUS, Judge.

text:
    Lloyd F. SISK, a Minor, by his duly appointed Guardians, Virgil L. Sisk and Mary Jo Sisk, Plaintiff-Respondent, v. Richard Dean DRIGGERS and Susie Irene Butler, Defendants-Appellants.
    No. 23471.
    Kansas City Court of Appeals. Missouri.
    Dec. 3, 1962.

      Gayles R. Pine, Betty Pine Lockard and Pine, Welling, Jones & Lockard, Warrens-burg, Crouch, Crouch, Spangler & Douglas, Harrisonville, for appellant Richard Dean Driggers.
    Ray L. Shubert, Harrisonville, Wesner, Wesner & Meyer, Sedaba, for appellant Susie Irene Butler.
    Hensley, Rahm & Braton, Warrensburg John C. Milholland, A. J. Anderson, Har-risonville, for respondent.
   BROADDUS, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment for $/500 against defendants Driggers and Butler from which they have appealed.

Defendants do not contend that plaintiff did not make a submissible case. Thus a brief statement of the facts will be sufficient to present the issues involved.

This action arises out of a motor vehicle collision which occurred about 4:30 p. m. on October 2, 1959, on Ü. S. Highway 50 in Johnson County, Missouri, at about 1.8 miles west of Pittsville. Highway 50 generally runs east and west and at the place of the collision is intersected by a north-south gravel road. Highway 50 is a two-lane blacktop highway with one east-bound and one west-bound lane and is approximately 22 feet wide. The intersection where the collision occurred is at or near the bottom of a valley or low place between two hills or grades so that vehicles approaching the intersection traveling either east or west are moving down grade. There are no curves in Highway 50 in the immediate vicinity of the scene of the collision.

It was daylight and cloudy' at the time of the collision. It had been raining and the surface of Highway 50 was wet and slick.

Four automobiles were involved in the collision, to-wit: A Plymouth coach being operated by Virgil Sisk, plaintiff’s father, a Ford Convertible being operated by defendant Driggers, a DeSoto Sedan being operated by defendant Butler, and a Ford Station Wagon being operated by defendant John Christopher. Plaintiff, Lloyd Sisk, then 9 years of age, was a passenger in his father’s car.

At the time in question, plaintiff’s father had stopped his westbound car in the westbound lane of the highway at the foot of the hill, waiting for eastbound traffic to pass so he could make his left turn across the eastbound lane. All parties agree that Sisk was signalling his intention to turn as he waited there. The crest of the hill behind S'isk’s stopped signalling automobile was approximately 1500 to 2000 feet to the east and the visibility was good.'

As defendants Driggers and Butler approached the scene westbound, Driggers overtook and passed the Butler car east of the .crest of the hill. When' Driggers got to the crest of the hill he could see the Sisk car stopped on the pavement 1500 to 2000 feet ahead of him. signalling for a left turn. When defendant ".Butler came over the crest) Driggers was already more than orie-half way down the hill.

- As Driggers-approached the stopped Sisk car he slowed his own car down to' 30 miles' per'hour, then turned off the pavement'oHto'the shoulder'where his car skidded and 'hit- a culvert which threw him back on‘the road-into collision with the Sisk' car.-v-"- ■ • ;■ .<■

’'Defendant’ Butler came over the crest of the'h'ill,'saw Driggers ahead and down the hill closer'to th'e intersection than to her,, drové down the hill at a speed she and her husband say was 50 miles per hour. Virgil Sisk said it was 60 to 70 miles per hour. .The BuRers continued down the hill, talking, until their car was about the length of the court room from the. Sisk and Drig-gers cars when defendant Butler applied her brakes. Her car skidded and crashed into the rear of the Sisk car knocking the latter across the center line into collision with defendant Christopher’s eastbound station wagon.'

Sergeant Ernest W. Van Winkle, the investigating officer of the Highway Patrol was an eye-witness to the last part of the four-car collision and arrived at the scene almost immediately thereafter. He measured and identified the various skid marks made by the vehicles at the scene.

The jury’s verdict was. in favor of the. defendant Christopher.

- Deffend'ant Butler’s first point is that the court 'erred ⅛' excluding, the' testimony of--' férfed from thé' deposition of 'the witness Curtis'to the effect that so' far as she was: able to determine there were no injuries resulting from the collision other than to defendant Butler and her passenger. Defendants do not dispute the fact that plaintiff was injured, nor do they claim that the verdict was excessive. In view of that situation defendant Butler’s counsel frankly conceded' in the oral argument that the point is not well taken.

For her point II defendant Butler contends that the court erred in overruling her motion to strike the testimony of the witness Van Winkle wherein in response to defendant Christopher’s counsel the court permitted the witness to relate the statement made to him by Christopher as to how the accident happened. Defendant made no objection on the ground that the testimony was hearsay as she now complains to this court. Thus the question is-not preserved for determination here.

Defendant Butler in her third assignment asserts that it was error to give at plaintiff’s request Instruction No. ¾. which is as follows:

“You are instructed that if you find and believp from the evidence that at ■ the time and place mentioned in evidence that plaintiff, Lloyd F. Sisk, was- . riding in his father’s westbound Plymouth automobile where it was stopped in the westbound lane of Highway 50, at or near the intersection mentioned ini evidence with its electric turn signal flashing for a left turn, if so, and that thereafter, while said Plymouth remained stopped that defendant Susie ■ Irene Butler drove her westbound De-Soto automobile over the crest of the hill east of the intersection and that she negligently allowed said DeSoto to-overtake and collide with the rear of the Plymouth in which plaintiff was riding, if so, and if you further find that such negligence on the part of Defendr ant Butler, if any, directly and proxi-m'ately cáüs'éd,-or combined, 'concurred and ’ cofltfib'uted with':the liegligeneé;'';1 if any, of one or both of the other defendants to directly and’proximately cause plaintiff to be injured, if so, then your verdict shall be in favor of the plaintiff, Lloyd F. Sisk, and against Defendant Susie Irene Butler.”

Plaintiff justifies the giving of this instruction under the so-called “rear end collision doctrine” enunciated in the much cited case of Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914. We agree with the view taken by plaintiff.

As his first point which he sets forth in subdivisions A, B, C and D defendant Driggers contends that it was error to give Instruction No. I. This was plaintiff’s main verdict directing instruction against Driggers. His chief attack on the instruction is that it failed to require a finding that a collision occurred between his automobile and the Sisk car. That fact was never in ■dispute. It is not error to omit conceded facts from an instruction. Wyckoff v. Davis, 297 S.W.2d 490, 496, Mo.Sup.

Under “B” he contends that the instruction failed to require a finding that plaintiff was injured as a result of collision ■caused by Driggers’ negligence. Contrary to defendant’s assertion, the closing paragraph of the instruction requires such finding.

Under “C” he asserts that the in■struction did not hypothesize facts which ■constituted actionable negligence on his part. Plaintiff’s theory of recovery against Driggers was that he violated a legislative standard of conduct, to-wit: that set forth in Sect. 304.016 V.A.M.S. as follows:

“2. The driver of a motor vehicle may overtake and pass to the right of another vehicle only under the following conditions:
“(1) When the vehicle overtaken is making or about to make a left turn.
“(5) The driver of a motor vehicle may overtake and pass another vehicle upon the right only under the foregoing •' conditions when such movement may be made in safety. In no event shall such movement he made by driving off the paved or main traveled portion of the roadivay.” (Emphasis ours.)

The instruction required a finding that defendant “saw the westbound Plymouth in which plaintiff was riding where it was stopped, at or near said intersection, with its electric turn signals flashing for a left turn, if so, and you find that defendant Driggers continued to approach and overtake the Plymouth from the rear and thereupon drove the Ford convertible off the paved or main traveled portion of the roadway and thereby passed the Plymouth on the right, if so, then you are instructed that defendant Driggers was negligent.” Thus it clearly appears that the contention lacks merit. Under “D” he says that the instruction “ignored plaintiff’s theory of the case that the collision of the Driggers automobile and the Sisk automobile proximately caused plaintiff’s injury.” Plaintiff’s theory against defendant Driggers was that the negligence of the latter caused or contributed to cause plaintiff’s injuries. The instruction required that finding and' under the decisions was correct. Levins v. Vigne, 339 Mo. 660, 98 S.W.2d 737, 741; Matthews v. Mound City Cab Co., 205 S.W.2d 243, 249, 250, Mo.App.

Defendant Driggers in his Point II and defendant Butler in her Point IV attack Instruction No. 5 given on behalf of plaintiff. A similar instruction was before our Supreme Court in the case of Rothweiler v. St. Louis Public Service Co., Mo., 234 S.W. 2d 552, and before this court in Morris v. Alexander, Mo.App., 275 S.W.2d 373.

The criticism and suggestions in the Roth-weiler opinion were heeded and followed in the drafting of Instruction 5. It does not contain the “no matter how great” description of defendants’ negligence which that opinion criticized, 234 S.W.2d l. c. 555. The portion of the instruction in that case which was held to he reversible for the evil of shifting the burden of proof

“ * * * and before you can render a verdict in favor of any one defendant, you must find and believe from the evidence that said defendant was not negligent or that his negligence, if any, did not contribute to cause plaintiff’s injury.” (l. c. 555, emphasis added.)

does not appear in Instruction 5. As this court recognized in its Morris opinion, the instruction with those vices removed constitutes a judicially approved form of instruction.

Defendant Driggers in his Point III contends that Instruction No. 7 was erroneous. It reads as follows:

“You are instructed in considering the testimony of any witness you should use your common sense, reason and judgment so that if you find that the testimony of any witness as to the facts surrounding the collision is in conflict with physical facts, then you may take into consideration such conflict in determining what weight will be given to the testimony of such witness or witnesses so conflicting.”

■ A similar instruction met with approval of our Supreme Court in the case of Roush v. Alkire Truck Lines, 245 S.W.2d 8, 12, 13.

Defendant Driggers claims it was error to give Instructions 14 and 15 on behalf of defendant Butler. And defendant Butler says it was error to give Instruction 9 on behalf of Driggers. Numbers 9 and 14 were sole cause instructions. Instruction 15 directed a verdict for defendant Butler in the event the jury found that she was not guilty of any negligence.

A study of the transcript has convinced us that if there was any error in these instructions the error was harmless. Both defendants were clearly negligent and the verdict was for the right party. Defendant Driggers was negligent as a matter of law. And defendant Butler was negligent in her lookout. As she put on her brakes in response to. “.some confusion” ahead she didn’t realize what was happening ; she didn’t know whether the Sisk car was moving or stopped; she didn’t know she hit the Sisk car but thought someone had hit her from the side; there was evidence that the Drigger vehicle was more than half of the 1500 to 2000 feet from the crest of the hill ahead of her when she started down the hill from the crest, and she closed the distance at (she said) 50 miles per hour, down hill on wet blacktop pavement to a distance the length of the court room or a little more before she ever took any step to slow her car. Many decisions hold that where the verdict is for the right party no instruction should be held to be reversibly erroneous. Among those cases are Green v. Boothe, 239 Mo.App. 73, 188 S.W. 2d 84; Raw v. Maddox, 230 Mo.App. 515, 93 S.W.2d 282; Crosby v. St. Louis County Cab Co., 320 S.W.2d 944, Mo.App.

The judgment is affirmed. All concur.


text:
    Elno SHAWVER, Plaintiff-Respondent, v. Len L. SHAWVER and James B. Gibson, Defendants, and The Prudential Insurance Company of America, a Corporation, Garnishee-Appellant.
    No. 23550.
    Kansas City Court of Appeals. Missouri.
    Dec. 3 1962.

      Henry G. Eager, Kansas City, Tweedie Fisher, Jefferson City, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, for garnishee-appellant.
    Howard L. McFadden, Jefferson City, for respondent.
   BROADDUS, Judge.

The Garnishee, Prudential Insurance Company, appeals from an order sustaining plaintiff’s motion for summary judgment and entering judgment for $1128.

This controversy concerns Mrs. Shaw-ver’s effort to garnish the cash surrender value of the appellant Prudential’s modified whole life type policy of insurance which was issued on January 1, 1950 to the defendant Len L. Shawver in the face amount of $8000. On June 23, 1960, plaintiff obtained a judgment totaling $7452.50 upon promissory notes against her former husband and on January 31, 1961, the Prudential was served with a summons of garnishment in aid of general execution issued January 26, 1961, upon the unpaid balance of this judgment, amounting to $2825. Interrogatories to the garnishee were filed. Appellant-insurer answered, admitting that this policy had been issued to Mr. Shawver but adding “no request in compliance with the terms of the policy” had ever been made for its surrender value. Mrs. Shawver denied these answers and prayed for judgment for $1272 against the garnishee, saying in part: “ * * * (g) The said policy provides that it may be surrendered for a stated value on written application therefor and surrender of the policy, (i) Prior to January 26, 1961, defendant had submitted his application to garnishee for the cash surrender of the said policy but did not, at that time, surrender the policy and garnishee has not yet paid the cash value thereon

The Prudential replied to these denials as follows:

“ * * * (g) Admits.

“(i) Admits that the cash surrender value of said policy has not been paid; denies that defendant has submitted his application to garnishee for cash surrender of said policy; admits that defendant did not surrender the policy; denies each allegation not admitted * *

On April 10, 1961, appellant-garnishee filed a motion to dismiss and for judgment on the pleadings. A hearing on said motions was had on May 15, 1961. It was then shown that “in the late summer of 1960” the insured made written application for the cash surrender value of the policy. In the course of the hearing the court inquired of plaintiff’s counsel: “Do you have the policy there?” To which the latter replied: “It has been submitted in evidence.” Both motions were overruled in accord with the following May 9, 1961, ruling by Judge Blair:

“Gentlemen:
“Counsel for both sides agreed that the letter of the Prudential Insurance Company of America, written and signed by F. W. Scammell, Manager, Ord. Policy Div. SWHO, might be considered by me as authentic and for its legitimate worth as evidence. I shall consider it in that light and for that purpose.
“To me the record is clear that an application was made in due form for the cash value of the policy in the late summer of 1960. It is not material that the exact date is not fixed by the record for I notice that in 1960 late summer came before autumn and autumn came before the beginning of winter and 1961 followed 1960. The garnishment was not issued until 1961.
“To my mind the only question is whether the application for a cash value was sufficient without being accompanied by a surrender of the policy. I think the question disappears when Magers v. National Life & Accident Insurance Co., 329 S.W.2d 752-756 is understood. There the Supreme Court en banc, in an instance paralleling this one, said: ‘Nor do we think that it is necessary that physical delivery of the policy be made to the Company at the time and as a part of the demand (for cash value). The policyholder should be entitled to retain the policy which is his evidence of the debt until the Company indicated its willingness to pay and then deliver it concurrently with the payment of the cash value and not precedent to it.’
“On this record, and in view of the Magers case, I have no alternative but to overrule the motion to dismiss, and that has been done as of this date.”

Subsequently, on May 23, 1961, plaintiff filed her motion for summary judgment alleging that the amount of the surrender value “is contained in the policy itself * * * ”, and that the necessary request for surrender was duly proved. On July 24, 1961, the court sustained this motion and entered judgment in favor of Mrs. Shawver for $1128, apparently as computed from the printed table of loan and non-forfeiture values for the 10th year the policy had been in force.

Appellant-garnishee filed alternative motions for judgment or new trial, which were overruled and this appeal followed.

Appellant states its Point I as follows:

“The actual surrender of this policy is an express condition precedent to the payment of its cash surrender value and such condition was not performed or legally excused by the insured-defendant’s submission of only his written request for surrender, as a result of which the trial court necessarily erred in holding that the appellant-insurer was unconditionally indebted to pay a cash value to the insured-defendant, and, therefore, liable in the present garnishment.”

We agree with the view taken by the learned trial court that the Magers opinion governs the instant case. That decision compels us to rule the contention adversely to appellant.

Appellant’s remaining point is that “the present summary judgment is improper because the amount of the cash value and tender of the policy are genuine issues of material fact which were not established by unassailable proof.” There is no merit in this contention. The insurance policy was offered in evidence. It shows its cash surrender value for each year the policy remains in force. And appellant-garnishee in its pleading admitted that on “January 26, 1961 the said policy was still in force.”

The judgment is affirmed.

All ■ concur.