author: PRITCHARD, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Robert R. JOHNSON et al., on Exceptions of Robert R. Johnson, Anne Johnson, R. Charles Johnson and Eliza Johnson, Appellants.
    No. 51025.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.

      Robert L. Hyder, Jefferson City, Samuel C. Ebling, Kirkwood, for respondent.
    Lashly & Neun, Paul W. Lashly, Edwin L. Zohner, St. Louis, Jenny, Cole & Davis, James Cole, Union, for appellants.
   PRITCHARD, Commissioner.

This is a condemnation action for the taking of a strip of land about 455 feet long, consisting of .37 acre, along old U.S. Highway 66 which fronted upon defendants’ “Skylark Motel” property. The motel is located about 2J4 miles west of the city limits of St. Clair, in Franklin County, Missouri. The jury’s verdict, upon which final judgment was entered, was $8,000; defendants claimed damages in the amount of $98,000. We have appellate jurisdiction by reason of the difference in these amounts exceeding $15,000. Mo.Const.1945, Art. V, § 3, V.A.M.S.; State ex rel. State Highway Commission v. Howald, Mo., 315 S.W.2d 786, 787 [1]; State ex rel. Kansas City Power and Light Company v. Salmark Home Builders, Inc. et al., Mo., 375 S.W.2d 92, 94 [1]. Plaintiff’s motion to dismiss this appeal for insufficient jurisdictional statement is overruled. From defendants’ reference in their jurisdictional statement to the record, which we have examined, we have determined the foregoing jurisdictional matters.

Prior to the date of taking herein (August 14, 1963), defendants’ motel was upon the northerly side of old U.S. Highway 66. Defendants had an access road directly thereto through an entrance 40 feet wide. The highway ran in a general southwest-northeast direction. Along the westerly side of defendants’ property ran Route “WW”, also known as Reiker-Ford Road, which intersected at a grade old Highway 66 approximately at right angles, running northerly therefrom. Defendants had an entrance 60 feet wide to Route “WW.” Defendants’ total property was 20 acres upon 3 acres of which was located the 14 unit motel and a residence. There was a chat driveway 20 feet wide, outlined in shrubbery, directly in front of the office building. There was also a large neon sign advertising defendants’ motel between the chat drive and the highway. In the area of the driveway were too small entrance signs. Between the east and west bound lanes of old U.S. Highway 66 was a grass median strip which was improved with crossovers at the intersection with Route “WW” and also about where defendants had their entrance in front of the motel office. According to plaintiff’s plans, both of these crossovers will be removed when the outer roadway, below mentioned, is continued in its construction westwardly to an interchange.

The strip of land taken, being in depth about 40 feet and about 455 feet long, was for the purpose of constructing a new outer roadway to limited access Interstate Highway 44. Within the .37 acre appropriated were the sign, 13 evergreens and a portion of the chat driveway. Defendants’ entrance now enters the new outer roadway which fronts all along defendants’ property in lieu of old U.S. Highway 66. Defendants’ en-tranceway of Route “WW” remains the same.

In answer to interrogatories, plaintiff stated that the Reiker-Ford Road (Route “WW”) will not have direct access to Interstate 44, but will in the future have access to and directly join the outer roadway or service road; and that along the outer roadway the nearest interchange would be almost 1/2 mile to the east of defendants’ property, and there would be another interchange to the west thereof an unknown distance.

Inasmuch as the decision here will turn upon the effect of or the construction of reservations of access to the highway in deeds given to plaintiff, the above statement of facts suffices for the purposes of this appeal. One deed was made July 8, 1949, by Charles and Eliza Johnson (for $100.00) who then owned 10 acres fronting on the highway, and was recorded in Book 169 at page 23 in the Franklin County records. The other was given by Otto and Amanda Meyer, who owned a strip of land similar to the Johnsons, and which was recorded in Book 169 at page 23 in said records. Both properties were thereafter acquired by defendants herein as joint tenants, and from 1951 to 1953 the motel in question was constructed. The reservation in the two deeds is as follows:

“The grantors, for themselves, their heirs, successors, assigns and invitees, reserve the usual right of direct access between their abutting land and any adjacent outer-roadway which may be maintained by a governmental agency on the state highway now designated as Route 66, and over such outer-roadway to the thruway, and during (and only during) such time as no adjacent outer-roadway is so maintained the right of direct access is reserved to and from such thruway over a location indicated on the West side of the road plans as ‘P.E.’, being 40 feet wide and centered on the right-of-way line opposite Station 714/90 but convey and relinquish all other abutter’s right of direct access between said abutting property and the highway (including its right of way) and ownership of said abutting property shall not give any other rights of access greater than or different from those belonging to the general traveling public.”

On motion granted October 4,1963, plaintiff amended its second amended petition by which it struck its former allegation of acquisition of the access rights, and pleaded that it was not acquiring specifically any abutter’s rights of direct access from defendants, and that it had acquired such rights by the deeds above mentioned. Prior to the trial, which began May 18, 1964, and out of the jury’s hearing, the court ruled that defendants could not introduce evidence bearing on the value of the loss of direct access to the central throughway upon the ground that such access had been acquired in 1949 by said deeds. The case was tried upon the theory that no rights of direct access were being acquired by condemnation. To this ruling of the trial court defendants’ first point is directed. They say that the trial court erred in denying recovery for the taking of the right of direct access because the deed of July 8, 1949, in favor of plaintiff, reserved to grantors, their heirs and assigns, a perpetual right of direct access to U.S. Highway 66. Plaintiff, on the contrary, contends that defendants’ predecessors in title by said deeds relinquished all rights of direct access to the throughway except for a temporary right of direct access which terminated on construction of an adjacent outer roadway to new Interstate 44.

We do not regard the wording in the above set forth deed reservation to be ambiguous on its face so that extrinsic evidence would have to be adverted to in order that grantors’ true meaning could be ascertained. Defendants point to no ambiguity and seem not here to claim any. They .do, however, set forth in the argument portion of their brief certain testimony elicited in the pre-trial hearing upon their motion to strike plaintiff’s amendment to its petition, ostensibly to show the intention of the grantors in making said reservation. The trial court did not err, in the pre-trial conference and hearing (at which a proffer of the extrinsic, explanatory testimony was made), in ruling that such extrinsic evidence should not be admitted. Korneman v. Davis, 281 Mo. 234, 219 S.W. 904, 906 [2]; Haley v. Sippley, 317 Mo. 505, 297 S.W. 362, 365 [3, 4]; White v. Kentling, 345 Mo. 526, 134 S.W.2d 39, 43 [3-6]. The true meaning of the reservation here can and should be ascertained from the deed itself, considering it as a whole. Korneman v. Davis, supra, loc.cit. 219 S.W. 907 [3, 4] ; Bay v. Stout Sign Company, Mo., 301 S.W. 2d 786, 788 [1-4]; and Boxley v. Easter, Mo., 319 S.W.2d 628, 632 [4], The parties, however, differ in their interpretations of the wording of the reservation clause of these deeds. We rule against defendants on their contention that there was reserved a perpetual right of access to the through highway. A fair construction of the deed is that there was reserved to grantors (and their heirs, etc.) an access to the throughway during, and only during, such time as there was constructed no outer roadway (adjacent to the throughway). When such outer roadway was constructed (at any time in the future so that it would he available to grantors and their heirs), then the reservation would apply only to that newly constructed outer roadway. Stated another way, there was a temporary right of access to the through lanes of U.S. Highway 66 until such time as an outer roadway was established, at which time the temporary access to the through lanes would cease, and a permanent access would attach to the new outer roadway. The outer roadway is now partially in existence, and will in the future extend to an interchange access mile to the east, and to another at an unknown distance to the west. Defendants have what their predecessors reserved, and there is no loss of access here which would be compen-sable in damages. We need not therefore decide, as urged by plaintiff, whether the somewhat analogous recent cases involving access issues, State ex rel. State Highway Commission v. Brockfeld, Banc, Mo., 388 S.W.2d 862, and State ex rel. State Highway Commission v. Meier, Banc, Mo., 388 S.W.2d 855, rule the defendants’ claim for compensable damages.

By Point II defendants say there was error in the court’s giving of Instruction No. 4. That instruction withdrew from the jury’s consideration any evidence relating to the future blocking or closing of County Road “WW” (Reiker-Ford Road) or the possible connecting of the outer road to a future outer roadway; and also any circuity of travel or inconvenience that defendants may suffer which is common to the general traveling public. The evidence showed that there is now access from Route “WW” to the through lanes of U.S. Highway 66 (Interstate 44), but that in the future such access will be cut off, and Interstate Highway 44 will then become limited access in nature. The outer roadway will continue to the west to an interchange of unknown distance, and 1/2 mile to the east. We have held that defendants’ reservation gave them access to the outer roadway when constructed. They had no right to access at the intersection of Route “WW” and the through lanes by that reservation, but only at the one entranceway indicated in the reservation. It was within the trial court’s discretion to withdraw that issue, which was not in the case, from the jury. Since all persons of the general public necessarily will have to travel the circuitous route of the outer roadway to interchanges (of whatever distance), it was proper also for the court to withdraw from the jury’s consideration that general inconvenience. We discern no error in the trial court’s giving of Instruction No. 4. Point II is overruled.

Defendants’ last Point III presents the contention that the giving of Instruction No. 3 to the jury was error. That instruction is as follows:

“You are instructed that in determining the just compensation to which the Defendant is entitled you shall first determine the fair market value of the Defendants’ land and buildings immediately prior to August 14, 1963, and you shall then determine the fair market value of the Defendants’ remaining land and buildings immediately after August 14, 1963, and the difference between these before and after values as shown by the evidence will be the damages to which the Defendants are entitled.”

Defendants say this instruction permits and instructs the jury to assess general benefits against them. Such benefits are not mentioned, and by no construction can the instruction be said to include them. The damages are merely to be ascertained from a finding of the value of the premises before the taking and the value thereof after the taking. That is the correct rule. Defendants offered no instruction withdrawing or excluding any general benefits by reason of the construction of Interstate 44. The instant instruction states the law. Texas-Empire Pipe Line Co. v. Stewart, 331 Mo. 525, 55 S.W.2d 283, 286 [5]; State ex rel. State Highway Commission v. Wright, Mo.App., 11 S.W.2d 66; compare State ex rel. State Highway Commission v. Goodson, 365 Mo. 260, 281 S.W.2d 858, 861 [4], and MAI No. 9.02. Point III is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All the Judges concur.


source: Caselaw Access Project

author: EAGER, Judge. STORCKMAN, Chief Justice

license: Public Domain

text:
    Janet S. KELLEY, Appellant, v. SOHIO CHEMICAL COMPANY, Respondent.
    No. 51149.
    Supreme Court of Missouri, In Banc.
    July 12, 1965.

      Rope, Shanberg & Rope, Herbert M. Rope, Sherman L. Gibson, Kansas City, for appellant.
    Edgar S. Carroll, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   EAGER, Judge.

This case was transferred here from the Kansas City Court of Appeals by our order. The opinion of that court appears at 383 S.W.2d 146. Under the practice more recently adopted opinions of the Courts of Appeals are not printed in the usual course where an application for transfer has been sustained.

After consideration, we have concluded to adopt and we do adopt the opinion of the Court of Appeals, but we shall add additional observations. We do not quote that opinion, since those interested may read it as reported. Merely for clarity, we state here that the case involves a Workmen’s Compensation claim filed by a young woman who was, at the time, employed in an office maintained by Sohio Chemical Company in the Kansas City Power & Light Building in Kansas City; during the noon hour, when she was alone for forty-five minutes and while she was in an inner room of the office, she heard footsteps behind her, started to turn around and was struck on the back of the head. A little later she was found unconscious by another employee, and she was hospitalized for about two weeks. Nothing was disturbed in the office and nothing stolen. Further facts appear in the cited opinion. Compensation was denied by the Commission and that holding was affirmed by the Circuit Court.

The Industrial Commission found from all the evidence that the claimant had failed to prove that she sustained an accident arising out of her employment; that is the equivalent of a finding that the accident did not arise out of the employment, and we shall so consider it.

In their reply brief claimant’s counsel rely upon the presumption stated as follows : “ * * * when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment.” They cite Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165, and they say further that the evidence here did not rebut that presumption. The existence of such a presumption, under proper circumstances, is also recognized in the following cases: Toole v. Bechtel Corp., Mo., 291 S.W.2d 874; Stamps v. Century Electric Co., Mo.App., 225 S.W.2d 493; Oswald v. Caradine Hat Co., Mo.App., 109 S.W.2d 893; Duff v. St. Louis Mining & Milling Corp., 363 Mo. 944, 255 S.W.2d 792. However, neither the Mershon case nor any of the cited cases was decided on the basis of such a presumption, but on the evidence adduced; in some, the employee was dead and the claims were adjudicated on medical testimony from autopsies. The cases fairly indicate that if there is evidence of occurrences, circumstances or physical condition which show, directly or by inferences, how the injury occurred, then the matter should be and will be decided on that evidence; and that if a presumption be deemed to have arisen in such instances, it disappears, being merely a procedural invention in the first place. Toole, Stamps, Duff, Oswald, supra. When the presumption cases are analyzed they afford no basis for a recovery here; in fact, no Workmen’s Compensation case actually decided on such a presumption is cited, nor have we found any.

There was direct and substantial evidence that the claimant was struck on the head by an unknown and unseen assailant who attacked for an unknown reason, and that there was no robbery or theft; indeed, there was no other crime, so far as the evidence shows. If any such presumption arose at all under these circumstances, it was rebutted by the evidence adduced, and the matter simply stood as a case of assault with the manner and circumstances affirmatively shown, if not the motive. See, on rather analogous facts, Giles v. W. E. Beverage Corp., 133 N.J.L. 137, 43 A.2d 286, aff. 134 N.J.L. 234, 46 A.2d 728, where the presumption was held not applicable because there was no “lack of evidence.” In that case two unidentified men were seen to enter a liquor store and shoot the manager, without speaking, without committing any robbery or theft, and for no known reason. In Larson on Workmen’s Compensation that holding is criticized, § 11.33, because the evidence did not show “why” the man was shot. If such were to be the rule, then it would seem that a recovery would be more or less automatic in every assault case where a motive was not actually shown, and we do not accept that reasoning.

The matter, therefore, stands on the evidence as in one sense a case of “unexplained” assault, or as the Court of Appeals stated, a “neutral assault,” i. e., one not shown specifically to have arisen out of the employment, or, on the contrary, to have arisen from some outside and personal circumstance or motive. But, in our view, the circumstances have been sufficiently shown by evidence to permit a reasonable inference, on the part of the finders of fact, that the assault had no connection with and did not arise out of the employment. In such a situation the burden still rests upon the claimant to show some direct causal connection between the injury and the employment. Toole v. Bechtel Corp., Mo., 291 S.W.2d 874; Stamps v. Century Electric Co., Mo.App., 225 S.W.2d 493; Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165; Reed v. Sensenbaugh, 229 Mo.App. 883, 86 S.W.2d 388; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62. Our courts have held that there may be an award of compensation if the injury was “a rational consequence of some hazard connected with the employment.” Toole, supra. See also: Reed v. Sensenbaugh, supra; Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743; Scherr v. Siding & Roofing Sales Co., supra; Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488. But it has also been held very generally that the employment must in some way expose the employee “to an unusual risk or injury from such agency which is not shared by the general public.” Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743; May v. Ozark Central Telephone Co., Mo.App., 272 S.W.2d 845; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62; Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488; Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296. Upon that basis the injury must have been a rational consequence of that hazard to which the employee has been exposed and which exists because of and as a part of the employment. Gregory, Toole, Scherr, Ries, supra. It is not sufficient that the employment may simply have furnished an occasion for an injury from some unconnected source. Gregory, Toole, supra; Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421.

It seems unnecessary here to distinguish those cases where unusual hazards were held to exist, Reed v. Sensenbaugh, 229 Mo.App. 883, 86 S.W.2d 388; King v. City of Clinton, Mo.App., 343 S.W.2d 185; or the cases involving the so-called street or highway hazards as applied to salesmen required to use the streets or highways regularly in their work. Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Beem v. H. D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441, 100 A.L.R. 1044. The facts here are in nowise similar.

The Commission has found that this injury did not arise out of the employment; it could and presumably did reasonably find from ¿he evidence, as elements of that ultimate finding, that no direct causative connection with the employment had been shown and that the employment merely furnished an “occasion” for the assault; also that the employee was not exposed, by reason of her employment, to a hazard “above and beyond those of the public generally,” as stated by the Court of Appeals in its opinion. We approve of the further statement of that Court, loe. cit. 149; “ * * * We have concluded that the award of the Industrial Commission was supported by competent and substantial testimony and was not contrary to the overwhelming weight of the evidence.”

Certainly, compensation has been denied by our courts in prior cases where the “hazards” were at least as great as any which could have rationally been foreseen here. Ries, Scherr, May, supra. It is unnecessary to consider the other findings of the Commission. The judgment is necessarily affirmed since we have adopted, with some elaboration, the opinion of the Court of Appeals.

HYDE, HENLEY, FINCH, JJ., and STONE, Special J., concur.

STORCKMAN, C. J., dissents in separate dissenting opinion filed.

HOLMAN, J., dissents and concurs in dissenting opinion of STORCKMAN, C. J.

STORCKMAN, Chief Justice

(dissenting).

I regret that I am unable to agree with the conclusions reached in the principal opinion or the opinion of the Kansas City Court of Appeals (383 S.W.2d 146) which is approved and adopted by the opinion of this court.

The facts are not in dispute and, since the question presented is one of law as regards its interpretation or application to the facts, the finding of the Industrial Commission is not binding on the reviewing court. The court of appeals recognizes this and cites supporting authorities. 383 S.W.2d at 147[3].

The essential facts bearing on the injury as set out in the opinion of the court of appeals are these, 383 S.W.2d at 147:

“ * * * On January 22, 1962, at 11:45 a. m. she [Miss Kelley, the claimant,] went out to lunch, and returned at 12:30 p. m. All the other offices on the floor were empty and closed at noon as their employees were at lunch. Miss Kelley’s office was the only one that always had someone present.

“Upon Miss Kelley’s return from lunch Mr. Terrell, a fellow employee, left for lunch leaving Miss Kelley alone. The third employee, Mr. Goodnight, was out of town that day. Miss Kelley went to the stock room for something and heard the bell on the elevator ring. The stock room is an inner room which can be entered only through the office. She describes what next occurred: ‘We have an automatic elevator and when it stops on our floor the bell rings, and I heard somebody walk into the office and walk up behind me and when I didn’t hear anybody say anything I started to turn around and then all I remember was somebody hitting me and that was all until I regained consciousness.’

“When Mr. Terrell returned from lunch at 1:10 p. m. he found Miss Kelley stretched out on the floor, face down and unconscious. She had a lump on the back of her head from something having struck it hard. There were black and blue marks on her right arm which could have been caused by finger prints. There were no heavy objects lying near her. Nothing in the office had been disturbed, tampered with or taken. Mr. Terrell summoned others, and Miss Kelley was taken to the hospital where she remained for a number of days.”

The court of appeals opinion sets out the three categories into which wilful assaults are divided and concludes that Missouri regards as noncompensable the “neutral category” which includes “completely unexplained assaults.” 383 S.W.2d at 147-148 [3], In support of this conclusion the opinion cites Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, which in turn relies chiefly on Mershon v. Missouri Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165. Both of these cases recognized the rule, as others have, that where an employee has been found injured at a place where his duty required him to be, a rebuttable presumption arises that he was injured in the course of and in consequence of his employment. It is true that in each case the court affirmed a judgment denying compensation but the reason was that there was evidence in each case tending to prove that the injury had no causal connection with the employment.

In Mershon, the Missouri rule was stated as follows, 221 S.W.2d at 167[2]: “Without reviewing those cases separately, we make the following general observations: Some, or all of them, hold under our Workmen’s Compensation Act and similar Acts that the burden is on a claimant to show that an employee’s injury resulted from an accident arising out of and in the course of his employment; but, when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment; that such presumption is rebuttable.” The Toole case recognizes the same rule citing Mershon. See 291 S.W.2d at 880[4].

Thus, the court of appeals opinion considers the case to be a true “unexplained assault” case but holds that the “supreme court has definitely placed this state” among those jurisdictions that regard this category as noncompensable. In so ruling the opinion of the court of appeals is clearly erroneous. The principal opinion adopts the court of appeals opinion but goes further and draws inferences that the evidence rebuts the presumption of causal connection. I deem this to be a true unexplained assault case which under the Missouri rule requires an award of compensation.

Section 287.800, RSMo 1959, V.A.M.S., provides that the Workmen’s Compensation Act “shall be liberally construed with a view to the public welfare”. This has been held to mean that a doubt as to the right of compensation should be resolved in favor of the employee. Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, 773 [5]; Holland v. Missouri Electric Power Co., Mo.App., 104 S.W.2d 277, 282[5]; Baird v. Gleaner Harvester Corp., Mo.App., 172 S.W.2d 892, 898[9].

There is no evidence in this case that the assault was a personal matter unconnected with the employee’s duty to attend the open office and protect her employer’s property. It is a proper case for the application of the rule laid down in Toole, Mershon, and other cases if such rule has any meaning or application at all. The most likely explanation of the assault is that the unknown intruder intended to rob or pilfer but became frightened and fled after he struck Miss Kelley and she fell face downward on the floor. This is a permissible inference and should be adopted since there is no evidence tending to show the injury did not arise out of the employment. Certainly if the blow had killed her such result would have been in order. The meager evidence does not mitigate against this, theory. The court of appeals and the principal opinion tend to dilute and destroy established rulings of the supreme court without overruling the cases.

For the reasons assigned I respectfully dissent. I would reverse the judgment and remand with directions to award compensation.

HOLMAN, J., concurs.


author: FINCH, Jtidge.

text:
    STATE of Missouri at the relation of Glen T. DAVIS, a Minor, by Glen F. Davis, his Father and Next Friend, Relator, v. Honorable Herbert K. MOSS, Judge of the Circuit Court of Jefferson County, Missouri, Respondent.
    No. 51154.
    Supreme Court of Missouri, En Banc.
    July 12, 1965.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for relator.
    Lawrence N. Weenick, Shepherd & Weenick, Clayton, for respondent.
   FINCH, Jtidge.

This is an original proceeding in prohibition to prevent the Circuit Judge of Jefferson County, Missouri, from entertaining jurisdiction in, and from proceeding further with, a personal injury action between John R. Kauffmann, plaintiff, and Glen T. Davis, defendant. The basis asserted is that under Civil Rule 55.45(a), V.A.M.R., Kauffmann’s cause of action is a compulsory counterclaim in a prior suit filed by Davis against Kauffmann seeking damages alleged to arise out of the same automobile collision.

The petition for prohibition and the return thereto establish the following facts:

August 9, 1963 — An automobile collision occurred in Jefferson County between relator, Glen T. Davis, and John R. Kauffmann, both residents of Jefferson County.
August 29, 1963 — Davis filed suit against Kauffmann in the Circuit Court of Jefferson County for damages arising out of the August 9, 1963, collision.
September 4, 1963 — Kauffmann filed suit against Davis in the Circuit Court of Jefferson County for damages arising out of the August 9, 1963, collision.
September 1963 — Service of process was obtained on Davis in the suit brought by Kauffmann.
September 23,1963 — -Service of process was obtained on Kauffmann in the suit brought by Davis.
October 2, 1963 — Davis filed motion to dismiss the Kauffmann suit on account of the pendency of the prior Davis suit between the same parties involving the same subject matter. This motion was overruled by Judge Eversole, the then Judge of the Circuit Court of Jefferson County, after which Davis filed answer and counterclaim in the Kauffmann suit. Subsequently, following the decision of this court in State ex rel. Buchanan v. Jensen, Mo., 379 S.W.2d 529, Davis sought and was granted leave by the Circuit Court to withdraw his answer and counterclaim in the Kauffmann suit. This was done and Davis then refiled his motion to dismiss the Kauffmann suit. The motion again was overruled by Judge Eversole, following which application was made to this court for prohibition. Judge Moss was substituted for Judge Eversole as respondent when he became Circuit Judge of Jefferson County.

The sole issue herein is whether, under Civil Rule 55.45(a), V.A.M.R., the claim asserted by Kauffmann in the suit filed September 4, 1963, is a compulsory counterclaim in the suit instituted on August 29, 1963, by Davis against Kauffmann. If it is, respondent has no power or authority to proceed further with the Kauffmann suit, and prohibition is the appropriate remedy under the circumstances. State ex rel. Buchanan v. Jensen, supra.

Civil Rule 55.45(a), V.A.M.R., provides as follows:

“(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of filing such pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require the presence of third parties of whom the court cannot acquire jurisdiction, except that such a claim need not be so stated if at, the time the action was commenced the claim was the subject of another pending action.”

In State ex rel. Buchanan v. Jensen, supra, this court considered Rule 55.45(a) and its application in a somewhat similar situation. There an automobile collision had occurred in Jackson County, Missouri, between two residents of that county. One Buchanan filed suit on March 26, 1963, against Simpson in the Circuit Court of Jackson County. On April 5, 1963, Simpson filed a separate suit against Buchanan, also in the Circuit Court of Jackson County. One was in Kansas City and one in the division at Independence, but this was of no consequence. Service was had on Simpson in the Buchanan case on April 23, 1963, and on Buchanan in the Simpson case on April 30, 1963. Buchanan filed a motion to dismiss the Simpson case by reason of the pendency of the prior Buchanan case. The motion was overruled by the Circuit Judge and Buchanan then sought prohibition in this court. Our provisional rule in prohibition was made permanent, based on Rule 55.45(a), this court saying, 1. c. 531: “A party can no longer avoid the impact of the compulsory counterclaim rule by bringing an independent action in another court after the commencement of the original action but before such party files his responsive pleading. This is the clear intent of the amendment and is consistent with the general purpose of the rule which is to avoid a multiplicity of suits and to dispose of litigation more expeditiously and properly.”

Respondent would differentiate the instant case from the Buchanan decision. He points out that in Buchanan the first service of process obtained was in the first case filed, namely, the Buchanan suit, whereas, in the instant case, the first service of process was in the second suit filed, namely, Kauffmann v. Davis. Consequently, says respondent, the first complete jurisdiction obtained by the Circuit Court of Jefferson County was in the suit filed by Kauffmann. Respondent concedes that an action is commenced by the filing of a petition and by suing out of process (Civil Rule 53.01, V.A.M.R.), but contends this conferred only jurisdiction over the subject matter, and that complete jurisdiction existed only after jurisdiction over the person was obtained by service of process, waiver or entry of appearance. Respondent relies on the case of Nicholson v. McLaughlin, Mo.App., 170 S.W.2d 705, as establishing the proposition that complete jurisdiction having first been obtained in the Kauffmann case, the Circuit Court of Jefferson County had jurisdiction to proceed with the Kauffmann case, and the court should not be prohibited from proceeding therein. He argues that a party is not an “opposing party” within Rule 55.45(a) until served with process, and until such time he is only a prospective opposing party. On that basis, and on the basis that complete jurisdiction, rather than commencement of the action, should be determinative, respondent contends that he should be permitted to proceed with this suit and that Rule 55.45(a), properly construed, does not provide otherwise. At the same time he recognizes that Davis would not be required to counterclaim in the Kauffmann suit since the Davis claim was the subject of a pending action at the time Kauffmann filed his suit, and thus falls within the exception stated at the end of Rule 55.45(a). The net result of respondent’s contentions would be that under facts such as exist here, each party to the collision could proceed with his separate suit for damages, and Rule 55.45(a) would be inapplicable.

We cannot agree with respondent’s position. An analysis of the language of Rule 55.45(a) will demonstrate why. The rule contains two conditions precedent. One is that both claims must arise out of the same transaction or occurrence. That condition is met here because the claims-of Davis and Kauffmann arise out of the collision of August 9, 1963. The second condition precedent is that the determination of the prospective counterclaim does not require the presence of third parties of whom the court cannot acquire jurisdiction. There is no requirement of any third party to the determination of the controversy between Davis and Kauffmann, and hence the second condition precedent is met under the facts of this case. Eliminating the language in the rule relating to the two conditions precedent, the rule would read as follows: “A pleading shall state as a counterclaim any claim which at the time of filing such pleading the pleader has against any opposing party * * * except that such a claim need not be so stated if at the time the action was commenced the claim was the subject of another pending action.”

Under the facts here involved, Kauff-mann did not have pending a suit against Davis at the time Davis filed his suit on August 29, 1963, and therefore the exception stated at the end of Rule 55.45(a) is not applicable to Kauffmann and does not concern us in determining whether Kauff-mann must counterclaim in the Davis suit. Paraphrasing slightly the remaining part of the rule, and applying it specifically to this case, it would state: “Kauffmann’s pleading shall state as a counterclaim any claim which at the time of filing such pleading the pleader, Kauffmann, has against Davis, the opposing party.” Kauffmann was served with process in the Davis suit on September 23, 1963. Thirty days thereafter he would be obliged to plead. At that time he had a claim against Davis arising out of the same automobile accident which served as the basis of the Davis suit, and Kauff-mann’s claim was not the subject of a pending action at the time the Davis action was commenced. He had a suit filed after the Davis suit was filed, but the exception in the Rule does not apply to a pending action unless pending before the Davis suit was filed. Therefore, Rule 55.45(a) did require that Kauffmann assert as a counterclaim his claim for damages against Davis arising out of the August 9, 1963, collision, under penalty of waiving it or being estopped to assert it elsewhere if he failed to do so. State ex rel. Buchanan v. Jensen, supra.

Prior to the amendment of Rule 55.45, effective May 1, 1962, the rule started with the words, “A pleading shall state as a counterclaim any claim, not the subject of a pending action.” The 1962 amendment eliminated the words “not the subject of a pending action” and added an exception at the end of subsection (a). As pointed out in State ex rel. Buchanan v. Jensen, supra, this amendment brought the rule into harmony with Federal Rule of Civil Procedure 13(a), which previously had been amended similarly to avoid an ambiguity that existed. With reference to the amendment to the Federal Rule, the Advisory Committee in a note under Rule 13(a), 28 U.S.C.A., Rules 12 to 16, page 342, stated: “The removal of the phrase ‘not the subject of a pending action’ and the addition of the new clause at the end of the subdivision is designed to eliminate the ambiguity noted in Prudential Insurance Co. of America v. Saxe, 1943, 77 U.S.App.D.C. 144, 33-34, 134 F.2d 16, certiorari denied 319 U.S. 745, 63 S.Ct. 1033, 87 L.Ed. 1701. The rewording of the subdivision in this respect insures against an undesirable possibility presented under the original rule whereby a party having a claim which would be the subject of a compulsory counterclaim could avoid stating it as such by bringing an independent action in another court after the commencement of the federal action but before serving his pleading in the federal action.”

The position asserted by respondent herein does violence to the language of Rule 55.45(a) as it now exists and would make it possible to nullify the provisions of that rule. All a defendant in the first suit would be required to do in order to avoid the compulsory counterclaim rule therein would be to hurry and file his own suit and then hide out or persuade the officer to serve process in his suit first, and Rule 55.45(a) would be inapplicable. The explanatory note following the Federal Rule discloses that the words “not the subject of a pending action” were eliminated and the exception at the end was added in order to prevent a defendant from doing what Kauffmann has sought to do here. Whether the second suit is filed before or after service of defendant in the first suit filed and whether service is obtained earlier in the first or second suit is immaterial. Likewise, the fact that the suit by Kauffmann was in the same court rather than a sep'arate court, as referred to in the explanatory note to the Federal Rule, is of no significance.

What we have said herein is not inconsistent with the case of State ex rel. Nicholson v. McLaughlin, Mo.App., 170- S.W.2d 705, the case cited and relied upon by respondent. That was a divorce action in which the subject matter of the suit was the marital relationship. The Court of Appeals held in that situation that the Circuit Court of the City of St. Louis, the court in which service first was obtained, even though it was not the first suit filed, could dispose of the entire matter and do complete justice. Accordingly, it was held to have exclusive jurisdiction to proceed with and dispose of the matter. However, in the Nicholson case and in the other cases which announce the rule that where two actions on the same subject are brought between the same parties to test the same rights in different courts having concurrent jurisdiction, the one first acquiring complete jurisdiction (which includes service of process) retains exclusive jurisdiction to dispose of the entire matter, it is a prerequisite that said court have the power to settle the entire controversy. Thus, in the McLaughlin case, the court stated, 1. c. 707: “The rule is stated in 21 C.J.S. Courts § 492, p. 745, as follows: ‘Where two actions between the same parties, on the same subject, and to test the same rights, are brought in different courts having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the whole controversy, and no court of coordinate power is at liberty to interfere with its action. This rule rests on comity and the necessity of avoiding conflict in the execution of judgments by independent courts, and is a necessary one because any other rule would unavoidably lead to perpetual collision and be productive of most calamitous results.’ ”

In the McLaughlin case the Circuit Court of the City of St. Louis could determine the entire marital controversy and settle all rights of all the parties. On the contrary, the Circuit Court of Jefferson County, in the suit brought by Kauffmann against Davis, cannot settle all the rights of all the parties arising out of the automobile collision unless Davis elects voluntarily to answer and counterclaim. This he declines to do, and under Rule 55.45(a) he is not required to do so because his suit was filed first and was pending when Kauff-mann filed his suit. The exception stated at the end of Rule 55.45(a) expressly excludes Davis, under these circumstances, from being required to counterclaim in the suit brought by Kauffmann. The application of the express provisions of Rule 55.-45(a) prevents disposition of all claims arising out of the automobile collision in the Kauffmann suit. Thus, one of the fundamental conditions laid down in the McLaughlin and similar cases is not here present. On the other hand, the enforcement of the plain provisions of Rule 55.45 (a) results in a complete determination of the claims of both parties and the administration of complete justice in the first suit which was brought by Davis against Kauff-mann. Rule 55.45(a) was adopted to avoid multiplicity of suits and to dispose of litigation more expeditiously and properly. The rule is nullified unless, under the facts in this case, we prohibit the Circuit Court of Jefferson County from proceeding in the Kauffmann suit. We hold that under the facts of this case, Rule 55.45(a) takes precedence over the rule that the court in which complete jurisdiction first is obtained retains exclusive jurisdiction.

Respondent poses the question as to what the situation would be if plaintiff in the first suit withheld issuance of process or was unable to obtain service. That situation is not presented under the facts of this case, and we will reserve that question for decision if and when it arises.

Respondent’s brief makes no contention that relator, by filing answer and counterclaim in the Kauffmann suit after his motion originally was overruled, waived any right to raise the question again and now proceed by prohibition. This question arose on oral argument and counsel for respondent stated that he had found no authorities to support such a position and therefore had not briefed the question. If, therefore, there was any question about this procedure, and we do not mean to imply that there was, it has been waived by respondent.

The provisional rule in prohibition is made permanent.

All concur, and STONE, Special J., concurs.


author: HYDE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. John Allen COX, Appellant.
    No. 51060.
    Supreme Court of Missouri, Division No. 1.
    July 12, 1965.
    Norman H. Anderson, Atty. Gen., Thomas E. Eichhorst, Asst. Atty. Gen., Jefferson City, for respondent.
    No brief filed for appellant.
   HYDE, Presiding Judge.

Motion to vacate judgment and sentence under Rule 27.26, overruled by the court and defendant has appealed. Defendant was tried on a charge of murder in the first degree but was convicted of second degree murder and sentenced to 20 years’ imprisonment, which was affirmed on appeal. State v. Cox, Mo.Sup., 352 S.W.2d 665.

Defendant’s motion raised two points: (1) Error in failure to call a panel of 47 jurors, citing Sec. 546.180, RSMo V.A. M.S.; (2) Error in trying and sentencing him under the Habitual Criminal Statute, Sec. 556.280, RSMo V.A.M.S.

As to the first, defendant relies on State v. Kinne, Mo.Sup., 372 S.W.2d 62. Sec. 546.180 does require a panel of 47 jurors in the City of St. Louis, where defendant was tried: “If the offense charged is punishable by death, or by imprisonment in the penitentiary not less than for life.” However, in the Kinne case a panel of less than 47 jurors was called “over the appellmfs objection.” In this case, the transcript on appeal from the judgment and sentence shows no objection to a panel of 40 jurors, which the court found was used. Failure to object was held to be a waiver of a right to a larger panel in State v. Nichols, Mo.Sup., 165 S.W.2d 674, 675, citing the earlier case of State v. Bell, 166 Mo. 106, 109, 65 S.W. 736, 737, which held: “[T]he matter of failing to provide a complete general panel before calling on a party defendant to make his challenges, is a matter of exception, pure and simple.” Therefore, this is not a matter that can bfe raised on a Rule 27.26, V.A.M.R. motion. We also note there was no claim of error concerning the panel made in the motion for new trial in the original case or in the briefs on appeal. Defendant was represented by able counsel both at the trial and on appeal.

On his second point, defendant relies on State v. Gordon, Mo.Sup., 344 S.W.2d 69, which held the Habitual Criminal Statute was not applicable where the State for a former conviction relied on a case in the U. S. District Court which after a plea of guilty “adjudged that imposition of sentence upon defendant be and hereby is suspended and defendant placed on probation for a period of two (2) years in accordance with conditions filed herein.” We pointed out that Sec. 556.280 “expressly provides that, as a condition for invoking the provision whereby the trial court shall determine the punishment, the defendant, as to the prior conviction, ‘shall be sentenced,’ and in subsection 2 it is specified that there must be a finding by the trial court that there has been a prior conviction, sentence.” On that record, we held “the defendant was not sentenced” -in the federal case; and that “[a] 'suspended sentence’ is not a ‘sentence’ within the meaning of that word as used in amended Section 556.280.”

In this case the prior judgment stated: “Now on this day comes the Assistant Circuit Attorney for the State, and the defendant herein, appearing in person and by attorney in open Court; upon his plea of guilty to the offense of Assault With Intent to Kill, heretofore on March 4, 1954, entered, with sentence thereon deferred by the Court. * * * Whereupon, said defendant is now sentenced upon his said plea to serve Two (2) years in the Intermediate Reformatory of the State of Missouri. Thereupon, his application for a parole together wtih the Parole Officer’s investigation report thereon heretofore filed, is heard and submitted; and the Court being satisfied that the defendant, now in custody, if permitted to go at large will not again violate the law, said JOHN ALLEN COX is hereby granted a parole.”

Thus, it is clear that defendant was sentenced in the prior case and was thereafter granted a parole so that there was no suspended sentence as in State v. Gordon, supra. Therefore, the court properly tried and sentenced defendant under the Habitual Criminal Statute, which is specifically made applicable to “any person * * * sentenced and subsequently * * * paroled.”

The judgment overruling the motion is affirmed.

All concur.


author: STOCKARD, Commissioner.

text:
    David RICHEY, by his mother and next friend, Barbara Richey, Appellant, v. Lucian KEMPER, Respondent.
    No. 51027.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.

      Walter F. Moudy, Kansas City, for appellant.
    Hale Houts, Thad C. McCanse, Houts, James, McCanse & Larison, Kansas City, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment of the trial court dismissing his petition for failure to state a claim upon which relief may be granted. The prayer was for damages in the amount of $25,000, and this court has appellate jurisdiction.

Plaintiff alleged that defendant subdivided land owned by him into city lots which he sold, but that he retained a “house and large lot next to and adjacent to” the subdivision; that defendant “actively encouraged and expressly invited small children living next to his retained premises to use his aforesaid large lot as a playground and ball field;” that defendant “caused and permitted trash, junk, and logs to lay around on portions of said lot, and permitted weeds, uncut grass, and other vegetable growth to grow up around this trash, junk, and logs so that they were concealed and difficult to see and presented a hazard to small boys who might be playing and running on defendant’s premises;” and that when plaintiff, then twelve years of age, was playing on defendant’s lot and running through a portion where weeds, grass and other vegetable growth concealed the trash, junk and logs, he jumped over a log and “tripped and fell over an old tin can or bucket which was concealed in said weeds and uncut grass and other vegetable growth” and was caused to fall and break his arm and sustain the injuries for which damages were sought. Plaintiff further alleged that defendant was negligent in “expressly inviting and encouraging small boys and this plaintiff to use his retained premises as a playground when he knew or should have known that the presence of weeds, uncut grass, and other vegetable growth would conceal the presence of trash, junk, and logs, and when he knew or should have known that it was dangerous for small boys to run and play on said premises and that it was likely that small boys would he injured by the presence of concealed junk, trash, and logs on said premises.”

Missouri decisions classify persons who enter upon land in the possession of another as trespassers, licensees, and invitees. Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 823; McVicar v. W. R. Arthur & Company, Mo., 312 S.W.2d 805, 65 A.L.R.2d 785; Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo., 246 S.W.2d 742. Plaintiff was not a trespasser because he was on the land at the invitation and with the consent of the possessor. Neither was he an invitee, sometimes called a business guest. “ ‘[T]he real test of the status of invitee (to whom the owner has the duty to take ordinary care to prevent his injury) is the purpose of his visit. * * * One cannot be declared the invitee of the person sought to be held liable, for failure to exercise due care to prevent his injury, unless he was there for some purpose of real benefit or interest to such person.5 ” Twine v. Norris Grain Co., Mo.App., 226 S.W.2d 415, quoting from Stevenson v. Kansas City Southern Ry. Co., 348 Mo. 1216, 159 S.W.2d 260, 263. Plaintiff does not allege facts from which it could be found that the purpose of his entry upon the land of defendant was of real benefit or interest to defendant, and there is no argument advanced that he should be treated as an invitee in the accepted legal classification under the existing rules in this state.

Plaintiff inferentially admits that he was a licensee because he entered the premises for his own purpose with the express consent of the possessor. McVicar v. W. R. Arthur & Company, supra; Twine v. Norris Grain Co., supra. In such situation the possessor of land is under no duty to such person to make the premises safe or to warn of dangerous conditions thereon, the possessor being liable only for “wanton or willful” acts or “active negligence.” Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A..N.S., 1045, 17 Ann.Cas. 576. The negligence charged on the part of defendant in this case was not “active” or “wanton or willful,” but it was what is characterized as “casual” or “passive” negligence. Ziegler v. Elms, Mo., 388 S.W.2d 839.

Certain carefully limited exceptions have permitted liability on the part of a possessor of land to an entrant thereon when no liability would exist under the above classification, but plaintiff does not rely on any of them. In fact, he affirmatively states that the instrumentality causing his injury does not qualify as an “attractive nuisance,” and that it was not “inherently dangerous,” so as to be within the doctrine stated in Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo., 246 S.W.2d 742. He also admits that the circumstances of this case are not governed by the “hard-by” doctrine as set forth in Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761, 47 A.L.R.2d 1038. He further concedes that ordinarily a landowner has no duty to make his premises safe for those entrants who are not in a business relationship with him even though he might reasonably foresee a risk of harm from some condition on the premises. From this it is evident that under the present classification of entrants upon land in the possession of another and the duties imposed upon the possessors of the land as to each, including the presently existing exceptions to the general rules, no liability of defendant exists for injuries sustained by plaintiff under the factual situation alleged in the petition. However, plaintiff submits and contends that the facts of this case call for an extension of the exceptions to the general rules, and, he asserts, “the possessor of land [should] have liability to an infant plaintiff where he actively encourages the use of his land by such plaintiff when, as here, he can foresee a substantial risk of harm to such plaintiff because of hidden defects on his land.”

Without specifically so stating, plaintiff is proposing that as to infants we adopt the principles set forth in the Restatement, Law of Torts, § 342, pertaining to the liability of a possessor of land to what is there called a gratuitous licensee, or that we adopt what is called the “alternative theory” advanced in Prosser, Law of Torts, § 78, p. 455 in classifying who is an invitee, with the corresponding duties of the possessor of land.

A gratuitous licensee is defined in § 331 of the Restatement to be any licensee other than a business visitor, and in § 342 it is proposed that a possessor of land should be subject to liability for bodily harm caused to a gratuitous licensee by a natural or artificial condition if (a) the possessor knows of the condition and realizes that it involves an unreasonable risk to the licensee and has reason to believe that he will not discover the condition or realize the risk, and (b) invites or permits him to enter or remain upon the land, without exercising reasonable care to make the condition reasonably safe or to warn of the condition and the risk involved. This court has, on numerous occasions, after careful and searching consideration, ruled that the law of this state is not in accord with § 342 of the Restatement. Porchey v. Kelling, supra; Stevenson v. Kansas City Southern Ry. Co., 348 Mo. 1216, 159 S.W.2d 260, 263; Ziegler v. Elms, supra; Twine v. Norris Grain Co., supra. Plaintiff has not advanced, and we find none upon our own examination and study, any convincing reason why in this case the rule in this state as to licensees, developed from the experience of time and formulated in the crucible of debate and argument, should now be changed. In fact, plaintiff does not cite § 342 of the Restatement, nor does he cite any case from another jurisdiction in which liability on the part of the defendant in the circumstances of this case was held to be authorized.

Plaintiff does not refer to Prosser’s “alternative theory,” but the basis of liability in that theory is that when one encourages others to enter upon his land to further a purpose of his own there is an implied representation that reasonable care has been exercised to make the place safe for those who come for that purpose. Prosser, Law of Torts, 2d ed., p. 455. We doubt that under this theory plaintiff has alleged facts from which it could be found that the invitation by defendant to plaintiff could be found to have been “to further a purpose of his own” unless it be said that every invitation by a possessor furthers his purpose, either practical or sentimental. However, this “alternative theory” has not been adopted in this state, and other than the presentation of the facts which naturally create a degree of sympathy for the plaintiff, he presents no compelling reason why the existing and established rule should now be changed, and sympathy alone is not a compelling reason whether it be for the plaintiff or defendant.

We conclude that plaintiff was a licensee, and that the facts alleged do not create a situation from which liability of the defendant may be found.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    ROCK SPRINGS REALTY, INC., Appellant, v. Robert Lee WAID, Billie I. Waid, O. D. Moffett and Mrs. Helen Moffett, Leonard W. White and Mrs. Leonard W. White and Virgil Rogers, Respondents.
    No. 51125.
    Supreme Court of Missouri, Division No. 2.
    July 12, 1965.
    Paul H. Niewald, Gordon, Adams, Nie-wald & Risjord, Kansas City, for appellant.
    Lloyd S. Heilman, Achtenberg, Sandler & Balkin, Clem W. Fairchild, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for respondents.
   EAGER, Presiding Judge.

This suit is one by a successor lessor against the lessees of a building used as a restaurant, for damages caused by a fire alleged to have been negligently caused. An employee of the lessees was also joined. More specifically, the petition proceeds upon a res ipsa theory and it alleges that the fire was negligently started by the use of the restaurant stove. The prayer was for $60,720.70 for the damage to the building and $2,600 for loss of rents. The principal defenses were: a denial of negligence, a claim of assumption of risk, the contention that the lease contained provisions which exonerated defendants from all damage by fire, and a plea of estoppel. By answers to interrogatories, plaintiff admitted the issuance of fire insurance policies totalling $45,000 and of a policy covering loss of rents; also, that it had made claim on the fire policies for $60,726.70, had collected on those policies $42,167.15, and that it had collected separately $2,600 for loss of rents. The insurers are not joined as subrogees. Plaintiff contends that the loss was not fully covered by insurance. The fire occurred on May 6, 1963; suit was filed on June 1, 1964. After the interrogatories were answered and responses were made to requests for admissions, the defendants filed their motion for summary judgment under our Rule 74.04, which the court sustained; a final judgment for defendants was entered on this motion. It is not claimed here by appellant that there are any genuine issues of fact.

The one basic question raised, and the one upon which the trial court obviously based its judgment, is whether the provisions of the written lease constituted an exoneration or release of the lessees from liability for a fire caused by their negligence or that of their employees. The trial court held that it did; if we affirm, then the actual existence or nonexistence of negligence on the facts is immaterial. If we should reverse, then the case would necessarily be remanded for a determination of that issue, and perhaps others. We have determined that the judgment should be affirmed.

The pertinent provisions of the lease are as follows: “4. During the term, or any extension thereof, Tenant will not do, allow or permit:— * * * anything to be done or kept in the premises which will cause cancellation of, or increase in the premium for, fire and explosion insurance on the premises, or on the building of which the premises may be a part, or on contents' belonging to anyone in the building, over the rate for occupancy of the business above mentioned; * * * 6. Tenant agrees: —to comply with all insurance regulations so the lowest fire, liability and explosion rates may be obtained; to pay all insurance premiums required to insure the full value at all times of all improvements made by Tenant in or to the premises * *; to maintain the premises and appurtenances in a first class condition and to pay for all repairs within or appurtenant thereto; * * to indemnify, protect and defend the Landlord from and against claims for damage or injury, of whatsoever kind or character, to person or property, howsoever caused, occurring in or about the leased premises, * * * 9. In case, during the term created or previous thereto, the premises hereby let, or the building of which said premises are a part, shall be destroyed or shall be so damaged as to become untenantable by fire or by providential means, then, in such event, at the option of Landlord, the term hereby created shall cease, * * *. In case Landlord shall not so elect to terminate this lease, in such event, this lease shall continue in full force and effect, and the Landlord shall repair the leased premises with all reasonable promptitude, placing the same in as good condition as they were at the time of the damage or destruction, * * * If Landlord cannot obtain fire insurance in responsible companies by reason of Tenant’s occupancy, Landlord may terminate this lease. * * * 18. At the expiration of this lease, Tenant will surrender keys and peaceable possession of the leased premises to Landlord or Agent, in good condition; loss by fire, casualty, Providence and deterioration excepted. * * * 21. Tenant shall not store or deposit garbage or trash around or on the premises and will take special precautions as often as necessary to clean grease from exhaust fan and duct on roof to prevent danger of fire therefrom.” (The italics are ours.)

The basic contentions here, pro and con, revolve around the construction of the provision that the lessee will surrender possession of the premises in good condition, “loss by fire, casualty, Providence and deterioration excepted.” Defendants say and the trial court agreed that this, considered along with the remainder of the lease, evidenced an intent to relieve the lessees from liability for all fires regardless of negligence, and that if the lessor had intended the contrary the stated exception should have been limited to “fire caused without negligence of tenant.” Appellant insists that the exception does not contemplate a fire caused by the lessees’ negligence and that if such were intended that intent should and must have been specifically and clearly stated. The issue here is thus rather narrow, though complicated. It is obvious that this lease, on a printed form with sundry and extensive protections to the lessor, was a “landlord’s” lease, namely, that it was prepared and presented by the lessor. We note this for whatever it may he worth. The case is actually one of first impression in Missouri on these or similar facts, although certain cases to which we will refer assume to state principles which might be controlling, if followed in the abstract.

We shall first dispose of the suggestion sometimes made that an agreement to exempt or'exonerate one from the consequences of his own negligence is against public policy. In so far as private individuals and private interests are concerned, that doctrine has been definitely rejected. Kansas City Stock Yards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692; Cerny-Pickas & Co. v. C. R. Jahn Co., 7 Ill.2d 393, 131 N.E.2d 100; General Mills v. Goldman, CA 8, 184 F.2d 359, cert. denied 340 U.S. 947, 71 S.Ct. 532 95 L.Ed. 683.

Seeking reversal of the summary judgment, appellant relies on the following cases and texts: Meyer Jewelry Co. v. Professional Building Co., Mo.App., 307 S.W.2d 517; Thomas v. Skelly Oil Co., Mo.App., 344 S.W.2d 320; Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185; Morris v. Warner, 207 Cal. 498, 279 P. 152; Sears, Roebuck & Co. v. Poling, 248 Iowa 582, 81 N.W.2d 462; Cerny-Pickas & Co. v. C. R. Jahn Co., 347 Ill.App. 379, 106 N.E.2d 828; Poslosky v. Firestone Tire & Rubber Co., Mo., 349 S.W.2d 847. Cerny-Pickas, supra, may readily be eliminated, as its theory was completely exploded by the Supreme Court of Illinois upon a subsequent appeal; we shall refer to that opinion later. 131 N.E.2d 100. Thomas involved an indemnity agreement and need not be discussed in detail; the opinion did state the principle that where one is to be indemnified against the results of his own negligence, the intention should be clearly expressed. In Morris, a California case of 1929, a redelivery clause in a lease excepting “fire and ordinary use” was held not to exonerate the tenant from his own negligence, but it does not appear that the lease contained any provisions concerning fire insurance, the materiality of which will be shown later. We shall discuss the Meyer, Winkler, Sears Roebuck and Poslosky cases.

In Meyer Jewelry Co. v. Professional Building Co., Mo.App., 307 S.W.2d 517, a lease of first floor and basement space in •an office building provided that lessor should not be liable for any damage to person or property “ * * * by steam, gas, or electricity, or from water, (from certain specified sources and causes) * * * or for damages * * * from the acts or negligence of co-tenants or other occupants * * (Words in parentheses are ours.) After plumbers had renovated the sewers in the basement quarters, water faucets were allowed to run and overflow during the night, this being due to acts of lessor’s agents. The lessee sued the lessor for its damage. The court held that the lease did not exempt the lessor from liability for its negligence, although it did exempt it from certain negligent acts of third persons; further, that an exculpatory clause must, in order to be effective exonerate the landlord “in plain terms” from its own acts of negligence. We note that the court there was not in any sense construing such a contract as we have here, and that no question of insurance was involved. Certain suggestions which we make later in connection with the Poslosky case are also applicable to this case.

In Winkler v. Appalachian Amusement Co., 238 N.C. 589, 79 S.E.2d 185, a theatre building was damaged by a fire caused by the careless operation of a popcorn machine by one of the tenant’s employees. The lessor sued the lessee for negligent damage. The lease provided that the lessee would at the termination of the lease deliver up the premises in good condition, “ordinary wear and tear and damage by fire or other casualty excepted.” A similar exception was made in the lessee’s covenant to repair. The lessors had agreed to carry insurance to the full value of the property and to restore the property in case of fire. Plaintiff was nonsuited, but the appellate court reversed and remanded; it held: that a lessee is ordinarily liable for negligence, and that a contract will never be construed as exempting the lessee from the results of his own negligence in the absence of express wording; also, that no exemption existed because of the insurance requirements. The court simply disagreed with the decision in the General Mills case, to be discussed later. Winkler, supra, and possibly the next case discussed are really the only cases cited by appellant which seem to be directly in point on its contentions. We are convinced that the majority of the recent cases, and indeed the sounder rule, is to the contrary.

In Sears, Roebuck & Co. v. Poling, 248 Iowa 582, 81 N.W.2d 462, the tenant had cut openings through a firewall and thus had allowed a fire on adjoining premises to enter and damage his lessor’s property. The lessor sued it for the negligent damage. The lease there required the lessee to redeliver the premises in substantially as good condition as when received, “loss by fire, tornado, earthquake or any unavoidable casualty and ordinary wear and tear excepted.” The tenant claimed that this constituted an exoneration from all liability for fire, even for a negligent fire. The lease further provided that the lessor should keep the property insured for its full value at his expense. The court held that there was no exoneration by reason of the lease provisions and that any such exoneration or exemption must be clearly expressed; it noted that the other excepted causes (in addition to fire) were all unavoidable occurrences, and it so construed the reference here to “fire”; it noted further that the negligence consisted of affirmative acts which were in themselves a violation of the lease. The court distinguished General Mills on the wording of the respective exceptions, and by reason of the affirmative acts of negligence in the Sears case. It will be noted that the exception in the Sears case was considerably different from the one in ours.

In Poslosky v. Firestone Tire & Rubber Co., Mo., 349 S.W.2d 847, suit was brought by the lessors and certain subrogated insurers against the tenant for damages from an allegedly negligent fire. The lease required the owner to carry insurance to the full insurable value of the property and to use the proceeds of such insurance for rebuilding in case of destruction by fire, as and if required by other provisions of the lease. The surrender clause merely required the tenant to deliver up the premises “peaceably” upon termination with no reference whatever to the condition of the property or to any exceptions. The lease was on a printed form prepared by Firestone, the lessee. After the individual plaintiffs acquired the property they reduced the insurance from $50,000 to $25,000; following the fire, they collected the reduced amount and sold the property, without repairing it; their claim was for the difference between the sum collected on the insurance and the alleged total value. The defendant contended that the insurance requirements were intended as, and operated as, a complete substitute for lessee’s liability in case of any fire, that lessee was in effect paying the premiums by increased rentals, and that the parties had, by their agreement, transferred all risk to the insurers whose policies covered negligent fires as well as others generally. The trial court so held. The policies covered all direct loss by fire and did not attempt to exclude negligently caused fires. This court held that any exemption of Firestone for a negligent fire must have been inserted in the lease in clear language and, since that had not been done, the judgment was reversed and the case remanded. In referring to those cases where the leases contained redelivery clauses with exceptions for “fire,” the court said, loe. cit. 851: “In the present case there is no specific provision excepting fire damage from the obligation of the lessee and, consequently, those cases are not pertinent.” However, the court did proceed to consider the specific rulings of some of those cases concerning the insurance question, and it concluded that the sole reason for the insurance provisions in Poslosky was to assure the lessee that the lessor would have funds available for rebuilding. We do not now repudiate the opinion, but we hold that its broad language to the effect that any exemption of a lessee for negligence must he “clearly and explicitly stated” may not he applied, per se, to a lease containing a redelivery clause excepting liability for “fire” which the lease in that case did not contain. The principle stated is sound when properly applied, but in a case such as the present one the intention of the parties must be ascertained from the whole lease, including its provisions concerning insurance. In other words, every case like the present one must be decided on its own facts and on the actual terms of the lease. What we have just said applies equally to the Meyer Jewelry case, supra.

The texts cited, 51 C.J.S. Landlord and Tenant, § 414, and 32 Am.Jur., Landlord and Tenant, § 783 (and therein see the Pocket Parts) contain general statements which are only of value to the extent that they are supported by adjudicated cases. We are here seeking to analyze the material cases, pro and con.

The following cases hold, generally, that an exception for loss by fire in the redelivery clause of a lease, when coupled with an agreement for the carrying of adequate insurance by the lessor, constitutes an exoneration of the lessee from liability for fire damage, even though negligently caused: General Mills v. Goldman, CA 8, 184 F.2d 359, cert. denied 340 U.S. 947, 71 S.Ct. 532, 95 L.Ed. 683; Cerny-Pickas & Co. v. C. R. Jahn Co., 7 Ill.2d 393, 131 N.E.2d 100; United States Fire Ins. Co. v. Phil-Mar Corp., 166 Ohio St. 85, 139 N.E.2d 330. While General Mills, supra, seems to be regarded as the leading case, the Cerny-Pickas opinion is, to us, at least as persuasive. In General Mills, supra, sundry provisions of the lease are set out but we quote the following: “That the Tenant will keep at its own expense said demised premises * * * in good repair * * * and that it will not use or permit anything upon said premises that will increase the rate of insurance thereon, * * * and the Tenant agrees to return said premises peaceably and promptly to the Lessor at the end of the term of this lease, or at any previous termination thereof, in as good condition as the same are now in or may hereafter be put in, loss by fire and ordinary wear excepted.” The premises were very substantially damaged by fire from a cause which may be assumed to have been the negligent act of an employee of the lessee. The lessor and certain subrogated insurers sued the lessee. The trial court held that defendant was not exonerated by the terms of the lease. The Court of Appeals reversed, with one judge dissenting. The lease contained no specific provisions regarding the obligation to insure, but evidence was admitted (and held properly so) to show that there was an understanding between the parties that the lessor would carry the insurance; it did insure, and following the fire it was paid the “full amount of its investment.” The court held, in substance: that it was intended by the parties that the rents should pay the insurance premiums and that any fire loss would be satisfied from the insurance, which agreement was not contrary to Minnesota law or public policy; that the lessor might fully control the insurance; that, in the light of such circumstances, the exception of “loss by fire,” exempted the lessee from liability for any fire loss which is ordinarily covered by insurance, as was this fire. The court thus said in part, loe. cit. 364, 365, 366 of 184 F.2d: “But there is no public policy in Minnesota inimical to resort to fire insurance covering loss by fire occurring with or without negligence and there is no reason for applying any 'strict construction’ to a lease entered into in contemplation of having a fully appreciated and guarded against fire risk carried by an insurance company. The undisputed evidence in this case presents exactly that situation. The landlords here agreed that the tenant should not be liable to pay for ‘loss by fire’ because it was understood between them that fire insurance would be taken out and a fire insurance company would be required to pay for any ‘loss by fire’ occurring on the premises during the term of the lease. Such insurance company would be required to pay whether the ‘loss by fire’ was caused by negligence or not as fire insurance universally covers loss by fire occurring from the kind of negligence here involved. The premiums to fire insurance companies are based on actuarial computations of fire losses so occurring. The policies are standardized and we are informed of no other kind of fire insurance in use in this country. ❖ *:* s;<

“The release of the tenant from obligation or liability for ‘loss by fire’ removed all interest on the part of the tenant to exact specific obligations of the landlord in the lease in respect to fire insurance and the landlord was left free as it wanted to be to control the fire insurance as to amounts, terms and companies. The reciprocal obligations of the tenant to subordinate its use of the premises to the contemplated fire insurance requirements specifically referred to in the lease and the tenant’s obligation to pay a rental agreed to in view of the fire insurance cost to the landlord, considered with the release of the tenant from loss by fire, completely and unequivocally express the mutual intention to relieve the tenant from loss by fire regardless of negligence and the provisions fully preserved the relating of the lease to the mutual understanding that loss by fire would be covered by fire insurance. # * t*

“It is very clear in the light of all the provisions of the lease, the circumstances of its execution and the understanding about fire insurance coverage to which the lease was related that by the provision that on termination of the lease the tenant should return the property in good condition ‘loss by fire * * * excepted’ the parties meant a loss by fire such as is always meant when men are talking about or figuring on the risk of it in business dealings — i. e., the ‘loss by fire’ which always is insured against in ordinary course and against which the landlords here intended to and did take out insurance in an amount greater than the owners’ investment.” The dissent proceeded generally upon the theory that the exemption from “loss by fire” should be held to apply only to contract liability and not to torts, that nothing in the lease actually required the lessor to carry insurance, that the question of insurance was immaterial, and that the court should adopt the view of the District Judge on the question of local law.

The opinion of the Supreme Court of Illinois in Cerny-Pickas & Co. v. C. R. Jahn Co., 7 Ill.2d 393, 131 N.E.2d 100, is very persuasive. There the lessor and an insurer joined in a suit against an allegedly negligent lessee for damages from a fire. The defendant claimed full exoneration under the terms of its lease; the lease provided that the lessee should keep the premises in repair and redeliver them upon termination in good condition “(loss by fire and ordinary wear excepted)”; also, that the lessor should pay for fire insurance but that the lessee should pay for any increase in rates due to the nature of its business. The plaintiffs had recovered in the trial court and that judgment was affirmed by the Court of Appeals, following a decision on a prior appeal reported at 347 Ill.App. 379, 106 N.E.2d 828. The Supreme Court reversed all such judgments. It held: that contracts exempting from negligence are valid as between private persons and involving private interests; that if all the provisions of a lease show an intent to exempt the lessee from loss occasioned by a negligent fire that is sufficient, without a specific mention of any such exemption; that the word “fire” as normally used includes all fires; that the parties contemplated the carrying of insurance to cover all losses in lieu of any liability on the part of the lessee. The court there said in part, 131 N.E.2d loc. cit. 102-103: “The argument most strongly urged against exoneration of the lessee is that the lease does not in so many words provide that the lessee be free from liability for fires resulting from its own negligence. Of course, if the lease contained such an express provision, that would be the end of the matter. But because the contingency was not covered by express language, it does not follow that the instrument may not, when all of its provisions are considered, show that the parties themselves intended that the lessee should not be liable. That determination is to be made upon a consideration of the instrument as a whole. * * * In the absence of any contrary expression in the lease, the lessee is not liable to the lessor for damages to the premises from fire which is not the result of his own negligence. (Tiffany, Landlord and' Tenant, sec. 111.) Therefore, unless this clause of the lease exempts the lessee from liability for loss by fire resulting from his own negligence, it does no more than restate the lessee’s common-law obligation. * * * There are areas of the law in which the distinctions between liability in contract and liability in tort may be significant, despite their remote and accidental origin. We are not satisfied, however, that such distinctions are relevant in determining the meaning to be given to words used by laymen in defining their rights and obligations. The word ‘fire’ is used without qualification throughout the lease before us. Its natural meaning would include all fires, regardless of their origin. To express the meaning for which the lessor contends, the lease would have to be altered to modify the word ‘fire’ by the qualifying words ‘not due to lessee’s negligence.’ It is more reasonable to assume, we think, that laymen would regard the word ‘fire’ as including all fires whether of negligent origin or otherwise. Under familiar standard fire insurance policies the insurer is obligated to pay for fires caused by negligence. * * * Although clause 26 requires the lessee to carry specified kinds of insurance, its responsibility with respect to fire insurance is limited to the obligation to pay for any increase in the insurance premium due to the nature of its business or the manner in which it was conducted. From the lease as a whole we conclude that the lessee was not to be liable for loss by fire regardless of the cause of the fire, and that the parties intended that the lessor should look solely to insurance as compensation for damage caused by any kind of fire.” The prior Cerny-Pickas opinion at 106 N.E.2d 828, cited and relied on by plaintiff, has thus been wholly repudiated. Two judges dissented on the later appeal, partially on the theory that the exception should be construed as applying only to contract liability, but also insisting that clear language should be required for such an exemption as was claimed.

A very similar decision appears in United States Fire Insurance Co. v. Phil-Mar Corp., 166 Ohio St. 85, 139 N.E.2d 330, where there was an exception in the redelivery provision of “loss by fire and ordinary wear and decay only excepted.” The insurers sued the lessee. The court held in substance: that the word “fire,” as used generally in fire insurance policies, includes all types of fires except arson; especially was that true where no qualification was made of the word in this excepting clause, although the word was specifically qualified as used in the provisions regarding destruction and repair, and the term “wear and decay” was qualified even in the excepting clause; that the lease as a whole, including the stated obligation of the lessee to pay for certain increases in the insurance rates, indicated that it was intended that the ■ lessor should look solely to the insurance. The opinon was adopted on a six-to-one vote. With particular reference to the insurance provisions, the court said, loc. cit. 333: “ * * * Thus, in the event of such an increase, lessee agreed to pay the increased cost of insurance. Clearly under this section of the lease it was contemplated that the lessor would carry insurance on the property and look to the insurance for compensation for any loss by fire. If the parties had' intended otherwise, there would have been no reason for such provision.”

In Kansas City Stock Yards Co. v. A. Reich & Sons, Mo., 250 S.W.2d 692, the court held that an oral agreement that the lessee would pay additional rentals to cover insurance costs and that the parties, lessor and lessee, would look solely to the insurance proceeds in case of fire, negligent or otherwise, was valid and not against public policy. This decision may also be construed as holding, inferentially at least, that any possible interference by such an agreement with the rights of insurers to subrogation would not constitute any legal impediment to the agreement, nor could policy provisions for subrogation rights interfere with the right of the lessor and lessee to so contract.

In Monsanto Chemical Co. v. American Bitumuls Co., Mo., 249 S.W.2d 428, a fire had destroyed chemical materials owned by Monsanto but held by defendant Cal-Spray Corporation for processing. It was claimed that the fire was of negligent origin. Monsanto had contracted to carry insurance to cover all materials so held for its account; it did insure, and thereafter collected the appropriate amount. It does not appear whether it was suing on behalf of the insurers, but in no event could their rights have been greater than Monsanto’s. The court held that the agreement was one to carry insurance for the mutual benefit of the parties, as otherwise there would have been no purpose at all in inserting the provision; and that the insurance was intended, among other purposes, to protect Cal-Spray from liability for any fire due to its negligence, by way of a satisfaction from the insurance. The court noted that had Cal-Spray procured fire insurance such would clearly have covered the loss, and that this fact should constitute an additional reason for holding that the agreed insurance was for the benefit of both parties. The opinion is an illustration of the trend in the construction of such business contracts, as well as leases; namely, that where the parties agree for full insurance coverage of property the agreement is for the benefit of both, and the insurance proceeds will be held to constitute a satisfaction of any claims for loss by one party against the other. A contrary result may, of course, be specifically stipulated.

Interesting and worthwhile articles on the general subject involved here appear in 33 New York University Law Journal, p. 585 et seq. and in 18 Ohio State Law Journal, p. 431. These state that, while there is conflict in the decisions, the “recent tendency seems to be in favor of nonliability” (33 NY LJ 585); and a further interesting observation is made,- — that if the insurer is permitted to recover by way of subrogation against the lessee, “the insurer gets a windfall in that it would have had to stand the loss had it been the lessor who was negligent, although the cost of the insurance ultimately is borne by the tenant in either case because included in the rent.” In other words, if the lessee had been the named insured or a co-insured, no contention based on its negligence could have been made in any event. In 18 Ohio State Law Journal at 431-432, the commentator states: “The trend of the law is definitely to construe the exception of fire clauses as an exculpatory provision, relieving the lessee from liability for his own negligence. The two opposing rules of construction, construing a lease most strictly against the lessor, or most strictly against an exculpatory contract, have merely been used by the courts as a make-weight factor in support of their particular conclusions. The two essential elements to the exculpatory construction are: (1) the existence of an exception of loss by fire and (2) the existence of fire insurance on the premises paid for by the lessor. * * * From a practical business point of view it is not likely that a manufacturing concern would intend only to protect itself from a[n] accidental loss and not loss due to its own negligence. Where it is clear that the parties contemplate insurance to be paid for by the lessor it is logical to conclude that they intend the lessee to pay for the insurance through rent payment. It would be an undue hardship to require a tenant to insure against his own negligence where he is paying for the fire insurance which covers the premises in favor of the lessor. The lessee should not be treated as a negligent third -party subject to subrogation rights, but should have the benefit of the insurance policy. Such a policy contemplates a potentially negligent occupant and a right of subrogation would be a windfall to the insurer.”

The present lease at least assumes that the lessor will maintain the insurance on the building. It forbids the lessees from doing anything which would cause a cancellation of the fire insurance or an increase in the rates, and it requires them to comply with all insurance regulations so that the lowest rates may be obtained and also to carry insurance on any improvements made by them; and specifically it provides that “If Landlord cannot obtain fire insurance in responsible companies by reason of Tenant’s occupancy, Landlord may terminate this lease.” We conclude that the intent of the parties here was that fire insurance should be carried by the lessor in adequate amounts for the benefit of both parties and that the exemption from “loss by fire” included all fires except those which, generally speaking, would be classed as arson. No reasonable businessman so contracting as a lessee would understand this lease to be one exempting him only for “loss by fire” not caused by his negligence; rather, he would interpret it to mean that he was exempted from liability for all fires which could normally be (and were) insured against by the usual fire insurance policy. If the lessor or the successor lessor here chose to carry insurance for less than the full value of the property, any detriment so resulting to it is due to its own fault. We need have no compunction here about the position of the insurers as subrogees. Fire insurers expect to pay fire losses for negligent fires and their rates are calculated upon that basis; indeed, we may well assume that a great majority of fires are caused by someone’s negligence, in a greater or lesser degree. No insurer could have any recourse against the lessor who took out the insurance; and if it is permitted a recovery merely because the tenant was not a co-insured, it would indeed be a “windfall.” And, legally, the insurer’s rights may certainly not rise higher than those of the lessor, who has here exculpated defendants by the terms of the lease.

We are not persuaded that the parties lessened or changed the ordinarily understood meaning of the word “fire” by the use of the words “casualty, Providence and deterioration” in the present exceptions of the redelivery provision. In conclusion, we suggest that such controversies as this might be greatly decreased in the future by a more apt choice of the language used in leases, and particularly in business and industrial leases.

The judgment of the trial court is affirmed.

All of the Judges concur.