author: HOWARD, Presiding Judge.

text:
    Lillian LEONE, Respondent, v. AMERICAN CAN COMPANY, Appellant.
    No. 24597.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1967.
    Application to Transfer Denied May 8, 1967.

      Harold T. VanDyke, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.
    Terence L. Connaughton, Kansas City, for respondent.
   HOWARD, Presiding Judge.

This is a workmen’s compensation case wherein the self insured employer has appealed from the action of the circuit court affirming the award of the Industrial Commission granting benefits to the widow of the' deceased employee. This appeal was originally lodged in the Supreme Court of Missouri but was transferred to this court by order of the Supreme Court.

Henry S. Leone was an employee of the American Can Company at its plant in North Kansas City, Missouri, on November 2, 1963, when he was crushed by the counterweight of an elevator and received injuries resulting in his death on the same day. The accident occurred on a Saturday, when the plant was not operating at full capacity. He had been assigned to checking, cleaning and repairing air lines to machinery on the second and third floors of the plant.

Sometime between 11:00 and 11:30 A.M., Mr. John W. Slayton, another employee of the American Can Company, started to go to lunch from his work place on the fourth floor of the plant. Near elevator No. 1, located at the west side of the north end of the plant, Mr. Slayton pulled his car keys from his pocket and dropped them on the floor. The key to the trunk of his car fell down the elevator shaft. He then rode the elevator to the first floor and walked down to the basement of the plant. He was seeking access to the pit of the elevator shaft to look for his car key. In the basement he opened the door of the millwrights’ washroom and saw Mr. Henry Leone inside. He asked Mr. Leone how to get into the elevator shaft and Mr. Leone pointed out the opening. Without further conversation, Mr. Slayton went into the elevator shaft, through the opening which he describes as more like a tunnel, about three feet square and about six feet long. In order to get into the elevator shaft, he had to crawl over pipes and through this tunnel-like opening. There was an electric light on the underneath side of the elevator car by which Mr. Slayton could see to look for his car key. As the elevator went up the light became dimmer and as the elevator came down the light became brighter because of its nearness to the person in the elevator shaft. Soon thereafter Mr. Slay-ton saw Mr. Leone squatted down in the entrance to the elevator shaft at the edge of the shaft. It developed that Mr. Leone was squatted down between two uprights which guided the counterweight of the elevator. Mr. Leone warned Slayton of the danger of his position in the elevator shaft and fold him if the elevator got too low, he should either lie down or get out of the shaft. Slayton continued to look for his key and the light on the bottom of the elevator got dimmer, indicating that the elevator was going up. He then heard a sound like the “air going out of somebody.” He looked around and saw Mr. Leone crumpled down close to the ground with the elevator counterweight on his back. For just a second there was slack in the cable holding the counterweight. Mr. Slay-ton yelled for the man on the elevator to bring the elevator down to raise the counterweight. This was done and after securing assistance, Mr. Leone was taken from the elevator shaft, the nurse was called and he was taken to the hospital where he died that afternoon. Mr. Slayton testified that immediately prior to the time that Mr. Leone was crushed by the counterweight, “he was warning me of the danger of the elevator coming down.”

Mr. Leone was employed as a member of the maintenance department. The testimony showed that it was the duty of the maintenance department to maintain the plant and the machinery therein and that members of this department frequently had occasion to go into the elevator shaft to make minor elevator repairs, to retrieve objects which had been dropped down the elevator shaft and, when the shafts were flooded, to pump them out. The elevator shafts were recognized as places of danger and it was the practice that no one went into them alone. Two men always went in together, the second man being described as a “back up” or “safety” man. There was no rule, regulation or directive of the employer forbidding employees going into the pits of the elevator shafts and no warning was posted at the entrance and the entrance was in no way barred or locked. It is admitted that Mr. Leone had not been assigned to any duty on this day which would require him to go into the pit of the elevator shaft where he met with his fatal accident.

The Industrial Commission, by its award, found that Mr. Leone met his death by accident which arose out of and in the course of his employment. In the additional findings of fact and conclusions of law it determined that Mr. Leone, when he came to the entrance of the elevator shaft, was acting solely to aid and safeguard his fellow employee, Slayton, and to warn him of the dangers if the elevator should descend while he was in the pit of the elevator shaft.

Appellant contends that this award is erroneous and that the trial court erred in affirming it because there was not sufficient evidence in the record to support the award; the facts found by the commission did not support the award; and the accident which resulted in Mr. Leone’s death did not arise out of or in the course of his employment. In considering this contention, we must remember that the burden rests upon the claimant to bring himself within the provisions of the Workmen’s Compensation Act and in this case, specifically, to show that Mr. Leone’s death resulted from an accident which arose “out of and in the course of his employment,” as required by Section 287.120, paragraph one, RSMo 1959, V.A.M.S., Ossery v. Burger-Baird Engraving Co., Mo., 256 S.W. 2d 805; Duff v. St. Louis Mining and Milling Corp., 363 Mo. 944, 255 S.W.2d 792 and Smith v. Levis-Zukoski Mercantile Co., 223 Mo.App. 743, 14 S.W.2d 470. We are required to consider the evidence in the light most favorable to the decision of the Industrial Commission, but we cannot weigh the evidence ourselves and cannot substitute our judgment for the judgment of the commission. In reaching our decision we must defer to the determination of the commission as to the credibility of the oral testimony. If the award of the commission is supported by competent and substantial evidence, it must be affirmed, unless we find that it cannot be sustained because it is contrary to the overwhelming weight of all the evidence in the record. Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874; Thompson v. Otis Elevator Co., Mo.App., 324 S.W.2d 755; Liverman v. Wagner, Mo. App., 384 S.W.2d 107 and Shireman v. Rainen Home Furnishers, Inc., Mo.App., 402 S.W.2d 64.

In its brief, appellant repeatedly asserts that there is no evidence whatever in the record as to the reason why Mr. Leone went into the elevator shaft. It contends that the most logical conclusion would be that Mr. Leone went into the elevator shaft to help Slayton find his car key or simply out of curiosity as to what was there at the bottom of the elevator shaft. It contends that when Mr. Leone appeared at the opening of the tunnel into the elevator shaft, he did not do anything; “he just sat there watching.” It further states, “There is absolutely no evidence that Mr. Leone entered the tunnel to safeguard his fellow employee and such assumption is without basis of fact.” The Industrial Commission, as heretofore mentioned, found “the purpose of the deceased was to aid his fellow workman and warn him of the danger involved” in his position at the bottom of the elevator shaft. The only testimony in the record on this point is that of Mr. Slayton, who testified unequivocally that he did not ask Mr. Leone to help him look for his car key and that the first he knew of Mr. Leone’s presence, was when he saw him squatting down at the entrance of the tunnel leading from the basement to the elevator shaft and between the uprights which guided the elevator counterweight. He further testified that Mr. Leone did not move from this position, but immediately advised him of the danger from the descending elevator and that if the light on the underneath side of the elevator got brighter it indicated the elevator car was coming down, and if the elevator car came too close that he (Slayton) could either lie down or get out of the elevator shaft. Slayton testified that this warning was given immediately before the counterweight crushed Mr. Leone.

While admittedly we have, and can have no direct evidence of the subjective intent of Mr. Leone when he entered the elevator shaft, we do have the evidence of what he, in fact, did and from this it is reasonable to infer that he entered for the purpose of doing that which he actually did. From this evidence the Industrial Commission concluded that Mr. Leone entered the elevator shaft for the purpose of warning Slayton and we find that this conclusion of the commission is supported by competent and substantial evidence and is not contrary to the overwhelming weight of all the evidence.

Appellant asserts that this accident occurred while Mr. Leone was on his lunch hour. There is some minor conflict in the evidence on this point, but we agree with the Industrial Commission that it is not necessary to make a finding on this issue because such fact is not determinative of the case.

The issue thus presented is whether or not the record, as we have heretofore summarized it, contained competent and substantial evidence to support the finding of the commission that the accident which resulted in Mr. Leone’s death arose out of and in the course of his employment. We conclude that the evidence does support this finding of the commission. Mr. Leone was a member of the maintenance department at employer’s plant. It was the duty of this department to keep the building in repair and the machinery in operating condition, and, in connection with their duties, members of this department often had occasion to go into the pits of the elevator shafts to make minor elevator repairs and to retrieve objects which were dropped down the elevator shafts and to pump out the shaft pits when they became flooded. It further appears that it was the practice for two men to go together whenever it was necessary to go into the elevator pits; the second man to act as back up or safety man and to warn if danger appeared from a descending elevator. Mr. Leone had been working on the second and third floors of the plant and Slayton found him in the millwrights’ washroom, which was used by the members of the maintenance department. He was washing his hands at a time shortly before he might reasonably be expected to go to lunch, although on this Saturday, when the plant was not fully operative, the lunch hour seems to be somewhat vague. In any event, Mr. Leone directed Mr. Slay-ton to the entrance of the elevator shaft and very shortly followed Mr. Slayton into the shaft, warning him of the danger and immediately thereafter was crushed by the counterweight. Admittedly, Mr. Leone had no reason to be in the elevator shaft in carrying out the duties specifically assigned to him that day of checking, cleaning and repairing air lines. However, it does appear that when Mr. Leone saw a fellow employee go into the elevator shaft, he left what he was doing (washing his hands) and followed him into the elevator shaft and warned him of the danger. Mr. Leone was, in fact, acting according to the custom of the plant to always enter the elevator shaft in pairs. He, in fact, acted as the safety or back up man in warning Slayton of the danger. Such entry into the elevator shaft was not forbidden by any rule, regulation or directive of the employer and this action of Mr. Leone was not for his own benefit but was, we believe, for the benefit of the employer to help protect a fellow employee from the dangers inherent in the elevator shaft, which was a part of the employer’s premises. His death resulted from an accident which occurred on the employer’s premises during his regular time of employment, at a place where it might reasonably be anticipated that Mr. Leone would be and while performing a duty which was reasonably incident to his overall employment and for the benefit of the employer.

The coverage of the Workmen’s Compensation Act is not limited to injuries which result while the employee is engaged solely, strictly and only in activities specifically assigned to him. The employee is not required to limit his activities to the performance of those acts specifically authorized in robot-like fashion. He is both permitted and expected to use his intelligence to do that which is necessary in the course of his employment for the benefit of his employer. Even though his judgment might be faulty as to what should be done, or the manner in which it should be done, or as to what will, in fact, tend to benefit the employer, the employee does not forfeit his right to workmen’s compensation when he proceeds in good faith according to his own judgment. See Ransdell v. International Shoe Co., 329 Mo. 47, 44 S.W.2d 1, 82 A.L.R. 1249, and Conyers v. Krey Packing Co., Mo.App., 194 S.W.2d 749. When we remember that Mr. Leone was a member of the maintenance department and that men in this department performed duties all over the plant, performed all kinds of functions in keeping the plant in operating condition, and that their activities specifically and properly, on occasion, included going into the elevator shafts to make minor repairs on the elevators and to retrieve objects that had been dropped into the elevator shaft, we can only conclude that the accident occurred when Mr. Leone was at a place where he could reasonably have been expected to be, and when he was doing something which was not forbidden and which Mr. Leone believed to be for the benefit of his employer. In light of the fact that the employees never went into the elevator shafts alone, we believe that the commission was justified in concluding that Mr. Leone entered into the elevator shaft as a safety man and that he was in the process of warning Slayton of the dangers when the accident occurred, and that such activities were reasonably incident to Mr. Leone’s employment. See Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454; Culberson v. Daniel Hamm Drayage Co., Mo., 286 S.W.2d 813; Daniels v. Krey Packing Co., Mo., 346 S. W.2d 78; Jordan v. Chase Hotel, Inc., Mo.App., 244 S.W.2d 404; and Liverman v. Wagner, Mo.App., 384 S.W.2d 107.

The commission could reasonably find that the accident occurred while Mr. Leone was engaged in an activity which could reasonably be anticipated by the employer; that he was in a position where the employer could reasonably anticipate that he would be; and that he had not abandoned his employment when he went into the elevator shaft after Mr. Slayton for the purpose of warning him of the dangers therein. See Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915 and Culberson v. Daniel Hamm Drayage Co., Mo., 286 S.W.2d 813.

Whether or not Mr. Leone was on his lunch hour would not change our conclusion. Even though we may assume he was on his lunch hour, such fact did not militate against a finding that the accident here arose out of and in the course of his employment. See Daniels v. Krey Packing Co., Mo., 346 S.W.2d 78 and Thompson v. Otis Elevator Co., Mo.App., 324 S.W.2d 755.

On the basis of the foregoing, we conclude that the record herein contains competent and substantial evidence to support the finding of the commission and that such finding is not contrary to the overwhelming weight of all the evidence, and, therefore, affirm the judgment of the trial court affirming the award of the Industrial Commission.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph LEVINE, Appellant, v. The JALE CORPORATION, Respondent.
    No. 24433.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1967.
    Application to Transfer Denied May 8, 1967.

      Rope, Shanberg, Rope & Gibson, Herbert M. Rope, Sherman L. Gibson, Kansas City, for appellant.
    George T. O’Laughlin, Kuraner, Ober-lander, Lamkin, Dingman & O’Laughlin, Kansas City, for respondent.
   HOWARD, Presiding Judge.

This case comes to the writer on reassignment. It is a suit for damages for personal injuries received as a result of stepping into a hole or depression in the defective sidewalk in front of the apartment house at 708 West 48th Street, Kansas City, Missouri, owned by respondent, The Jale Corporation. The suit was originally brought against The Jale Corporation and against Irving C. Rubin and Anna Rubin, owners of the apartment house next door at 712 West 48th Street. Although this case involves an allegedly defective sidewalk, the city of Kansas City, Missouri, is not a party. The Rubins were let out of the case by directed verdict at the close of plaintiff’s evidence. Trial to a jury resulted in a verdict in favor of appellant in the amount of $3,500.00, but the trial court thereafter entered judgment in favor of respondent, The Jale Corporation, in accordance with its motion for directed verdict filed at the close of all the evidence. The trial court also sustained respondent’s motion for new trial. in the alternative. Plaintiff has appealed. We shall refer to appellant Levine as plaintiff and to respondent, The Jale Corporation, as defendant.

West 48th Street in Kansas City, Missouri, runs east and west. The two apartment houses mentioned herein are located on the north side of West 48th Street, facing south. Between these two apartment houses there is what is referred to, variously, as an alley or a driveway. It leads to a dead end at the back of the apartment house properties, and there is not room to turn around in the driveway. Vehicles using the driveway go in forward and back out. At its narrowest point, it is from 7 to 10 feet wide. People having business at the apartment houses use this driveway for their trucks and other vehicles. It is not a thoroughfare. The apartment house numbered 708, belonging to defendant, is east of this driveway and the apartment house numbered 712, belonging to the Rubins, is west of the driveway. The two apartment houses are separated only by this driveway. In front of these apartment houses is a curb and sidewalk which extends from the terraced front lawn of each apartment house to the street. There is no parking. There is no sidewalk across the driveway. The sidewalk and curb come up to the drive and the curbing curves around the end of the sidewalk and extends into the terrace on each side of the driveway. The driveway is at street level, and is thus lower than the level of the sidewalk by the height of the curbing. In walking along this sidewalk, one must step down from the sidewalk and curbing on one side, walk across the driveway, and then step up onto the curb and sidewalk on the other side of the driveway.

The accident occurred sometime after 9 P.M. on April 9, 1964. Plaintiff had returned home about 9 P.M. and soon thereafter left his residence in ah apartment in the building at 712 West 48th Street, to go to a restaurant in the next block east, to have supper. It was dark and he testified he could barely see the outline of the sidewalk and curb. Plaintiff walked eastward from his apartment house, along the sidewalk, stepped down to the level of the driveway, walked across the driveway, and in stepping up onto the curb on the east side of the driveway, he stepped into an indentation, or hole, or a worn place in the curbing or sidewalk, and turned his ankle and foot. He testified that it felt like he had sprained his ankle. He did not fall. Plaintiff limped on to the restaurant, had supper and returned home where his wife treated his injured foot and ankle and early next morning, he . sought medical attention. It developed that he had a fracture of the fifth metatarsal bone of his right foot. In view of the issues presented, we need not go into detail concerning the medical evidence.

Plaintiff and his wife testified that the driveway had been structurally the same all during the fifteen years which they had lived at 712 West 48th Street. They did not know when the driveway was construc-ed or who constructed it or was responsible therefor. The sidewalk and curb in front of their apartment house, at 712 West 48th Street, had been repaired sometime around 1958 and was in good condition at the time of the accident. The sidewalk in front of the apartment owned by defendant, at 708 West 48th Street, was in bad shape. The curbing was worn and was crumbling away, and the sidewalk next to the curbing, along the curve at the driveway and along the curb line between the sidewalk and the street was broken and depressed up to 2 inches in some places.

Plaintiff’s evidence showed that the driveway was used at times by automobiles, but primarily by garbage trucks, trash trucks, furniture vans, delivery trucks and trucks driven by repairmen, maintenance men, etc. The drivers of these vehicles had business with those who operated the apartment houses, such as those collecting garbage, trash, etc. and also with various tenants in the two apartment buildings, such as the drivers of furniture vans, delivering and taking away furniture when tenants moved, and the drivers of other trucks of various sizes, repairing appliances belonging to tenants and delivering merchandise ordered by tenants. Because of the narrowness of the driveway, these trucks, and especially the larger and heavier ones, often ran and drove their wheels over the curb and sidewalk on each side of the driveway in turning into and backing out of the drive. The plaintiff testified that he did not know what caused the defects, that he did not know that the trucks caused the depressions, holes and broken places in the curb and sidewalk, and that he did not know if these were caused by freezing. Plaintiff knew of, and had mentioned to others, the defective condition of the curb and sidewalk in front of defendant’s apartment house for several months prior to the accident.

There was no showing that either the defendant, or any of its tenants, operated or were responsible for the operation of any of the trucks or other vehicles which used this driveway and ran their wheels over the curb and sidewalk at the sides of the driveway.

Plaintiff’s evidence as to the physical condition of the driveway and sidewalk and the operation of vehicles using the driveway came solely from the testimony of plaintiff and his wife. Defendant’s only witness was a photographer, who gave evidence of measurements of the driveway and identified pictures thereof. Plaintiff relies on only one point for reversal and this is that the trial court erred in setting aside the verdict and entering judgment for defendant in accordance with its motion for a directed verdict, or in the alternative, granting defendant a new trial. Plaintiff asserts that he made a submissible case under the existing law.

Plaintiff does not contend that defendant’s liability results from any affirmative act committed by defendant; rather he asserts that the use of the driveway by the various trucks and other vehicles, as described above, constituted a special use of the sidewalk by and for the benefit of defendant and that such special use caused the defects in the sidewalk and that the defendant negligently failed to repair such defects and that such negligence caused plaintiff’s injury. In support of this contention plaintiff relies primarily on a citation from 63 C.J.S. Municipal Corporations § 861, p. 226, where it is stated, “Thus the abutting owner or occupant will be liable where he uses the sidewalk for his own private benefit or convenience and fails to exercise reasonable care to prevent injury to persons lawfully using the way.” He further quotes from a later paragraph in this same section, page 227: “Where a sidewalk is used as a driveway for vehicles by an abutting owner or occupant, the special use carries with it the duty not to permit the use to create conditions unsafe for the passing thereon of pedestrians, or if it does create such conditions not to allow them to remain for an unreasonable time, * * * ” Although this quotation asserts that the use of a sidewalk for a driveway by an abutting property owner constitutes a special use, an examination of the cases cited in support thereof reveals, in each instance, a fact situation with something more than mere user, on which liability is based.

We have carefully examined all of the authorities cited in C.J.S. supra, and by the parties, together with a large number of additional cases discovered through our own not inconsiderable research and have been unable to find any case wherein liability was imposed upon the abutting landowner in a fact situation comparable to that presented in the case at bar. See Annotation 88 A.L.R.2d 331. There are numerous cases where the landowner, or his predecessor, has removed the existing sidewalk constructed by the city and in its place has installed a specially constructed driveway for use in connection with the abutting premises. In such cases it appears that the law imposes upon the abutting landowner a duty, in the first instance, to replace the sidewalk with a structure which is reasonably safe for pedestrian traffic, and having affirmatively changed the condition of the existing sidewalk by the installation of the special driveway, the landowner has a continuing duty to maintain such special structure in a condition reasonably safe for pedestrian travel. See among the many cases, Moore v. Monarch Gasoline & Oil Co., 225 Mo.App. 115, 35 S.W.2d 669; Cuddy v. Shell Petroleum Corp., Mo.App., 127 S.W.2d 24, affirmed State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673; Martin v. Gilmore, Mo.App., 358 S.W.2d 462; Granucci v. Claasen, 204 Cal. 509, 269 P. 437, 59 A.L.R. 435; Joel v. Electrical Research Products, Inc., C.A.2, 94 F.2d 588; and Barker v. Kroger Grocery & Baking Co., C.A.7, 107 F.2d 530. Likewise, it appears that the abutting landowner has a duty to refrain from depositing foreign objects on the sidewalk through his use thereof, as a part of the driveway or otherwise, which objects would render the sidewalk unsafe for pedestrian traffic. This seems to apply to any use of the sidewalk and is not necessarily restricted to the use of the sidewalk as a driveway. See Texas Company v. Williams, 228 Ala. 30, 152 So. 47; James v. Burchett, 15 Wash.2d 119, 129 P.2d 790; Kopfinger v. Grand Central Public Market, 60 Cal.2d 852, 37 Cal.Rptr. 65, 389 P.2d 529 and Lee v. Ashizawa, 60 Cal.2d 862, 37 Cal.Rptr. 71, 389 P.2d 535.

From the cases it is abundantly clear that the abutting landowner has a duty to refrain from any affirmative action causing a dangerously defective condition in the sidewalk. This duty applies to all portions of the sidewalk, both those forming part of the driveway and those not forming part of the driveway. This duty encompasses the operation of heavy vehicles, which, when passing over the sidewalk, cause breakage, cracks or holes therein. See Mullins v. Siegel-Cooper Company, 183 N.Y. 129, 75 N.E. 1112; Degnan v. City of New York, 224 App.Div. 357, 231 N.Y.S. 181; Hague v. McHugh, 168 Wash. 575, 12 P.2d 748; Barker v. Kroger Grocery & Baking Co., C.A.7, 107 F.2d 530. However it does appear that the sidewalk is a part of the street or highway and that members of the public and the owner both have a right of ingress and egress to and from the adjoining property over and across the sidewalk. Such right of ingress and egress includes vehicular traffic, as well as pedestrian traffic. When such use is reasonable in nature and amount, the resulting wear and tear on the sidewalk at the point of the driveway does not create liability on the part of the abutting landowner for defects in such sidewalk resulting from the use thereof as part of the driveway. See Daly v. Rector, Church Wardens and Vestrymen of Trinity Church, 188 App.Div. 280, 176 N.Y.S. 734; Atkinson v. Sheriff Motor Co., 203 Iowa 195, 212 N.W. 484; City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160; Adams v. Grapotte, Tex.Civ.App., 69 S.W.2d 460, affirmed 130 Tex. 587, 111 S.W.2d 690; Winston v. Hansell, 160 Cal.App.2d 570, 325 P.2d 569, 88 A.L.R.2d 326 and Graalum v. Radisson Ramp, Inc., 245 Minn. 54, 71 N. W.2d 904.

Examining the facts of the case at bar in light of the foregoing authorities, the evidence does not reveal that the defendant, or any of its predecessors, removed the sidewalk and installed a structure specially designed for its own uses, nor does it reveal that any vehicle operated either by the defendant, or its tenants, or any one under the control of either, caused the defects in the sidewalk, which resulted in plaintiff’s injuries. Likewise, we are not dealing with a case where foreign objects have been deposited on the sidewalk as a result of defendant’s use thereof. Plaintiff contends that the use of the driveway by trash trucks, delivery trucks, etc., as described above, constituted a special use by and for the benefit of defendant, and that, therefore, defendant is liable for any injury resulting from defects in the sidewalk caused by such use. Since no issue is raised on this appeal, we assume, for the purposes of this case only, that the defects complained of were, in fact, caused by the traffic described. Even so assuming, it appears that the traffic was merely that normally to be expected to and from an apartment house in the city of Kansas City, Missouri. Nothing appears which would make this traffic unusual or unreasonable in either kind or amount. In such circumstances, the California court in Winston v. Hansell, 160 Cal.App.2d 570, 325 P.2d 569, 88 A.L.R.2d 326, specifically found that the use of a driveway across a sidewalk would not amount to a special use of the sidewalk by the abutting landowner. Furthermore, we reiterate that the vehicular traffic did not include vehicles owned or operated by defendant, or its tenants, or anyone under its control. The courts of Nebraska and Ohio have considered comparable situations and both have concluded that the abutting landowner is not responsible for the action of delivery trucks, etc., operated by those over whom the landowner had no control, even though such operation was incident to ingress and egress to the abutting property. See Andresen v. Burbank, 157 Neb. 909, 62 N.W.2d 135 and Eichorn v. Lustig’s, Inc., 161 Ohio St. 11, 117 N.E.2d 436. Consequently, and up to this point, we can find no basis for imposing liability on the abutting landowner.

Plaintiff has cited the cases of Lee v. City of Baton Rouge, La.App., 141 So.2d 125 and Stone v. City of Seattle, 64 Wash.2d 166, 391 P.2d 179, as supporting his contention that the law casts liability on abutting landowners in the factual situation presented in the case at bar. We can not agree. Lee v. City of Baton Rouge, supra, involved a question of summary judgment in behalf of the city, where the plaintiff had settled with the abutting property owner. Because of the summary judgment proceeding, the Louisiana Court held that it was bound by the allegation of negligence as to the abutting property owner found in the petition. The court assumed such allegation to be true and made no finding either of fact or liability. In Stone v. City of Seattle, supra, an abutting apartment house owner constructed parking places on a 16 wide strip of ground between the apartment house and the sidewalk; he rented these parking spaces to various individuals. The parking spaces were so constructed that it was more convenient, and perhaps necessary, for some of the tenants to drive their vehicles over the sidewalk at a point which was not part of the driveway rather than going in the driveway. The Washington Supreme Court approved a declaration of the trial court that under the circumstances shown the abutting landowner could reasonably foresee that his tenants would drive their vehicles over the sidewalk at a point not part of the driveway and that such fact •constituted a special use of the sidewalk by such landowner. Again this affords no .assistance in solving the problem presented by the case at bar.

The case which is probably factually most similar to ours is Barker v. Kroger Grocery & Baking Company, C.A. 7, 107 F.2d 530. Here the plaintiff fell on a cracked sidewalk .at the edge of a driveway and sustained injuries. The driveway had been specially •constructed by defendant’s predecessor. It was narrow and trucks using the driveway for access to the area behind the Kroger store habitually ran their wheels over the sidewalk on each side of the driveway. Trucks belonging to both Kroger and others used the driveway. There was specific evidence that large Kroger vehicles, when entering and leaving the driveway, caused •cracks both in the driveway and in the sidewalk on each side of the driveway. Under •such circumstances the court held, since the •evidence showed that defendant’s trucks •caused at least some of the cracks which resulted in plaintiff’s fall, that this was sufficient to cast liability upon the defendant, and that the plaintiff was not required to show that a specific truck belonging to defendant caused the specific crack which caused plaintiff to fall. Although there was a specially constructed driveway substituted for the sidewalk in this case, the liability was apparently cast upon defendant because of its affirmative action in breaking up the sidewalk with its heavy vehicles. Although this case seems to follow others imposing liability on one who creates defects in the sidewalk through the operation of its own "heavy vehicles, it is interesting to note that the opinion does not contain one single citation of authority. Because of the special facts shown and relied on in this case, it is not decisive in determining the issues presented in the case at bar.

Turning now to an examination of Missouri authority, including but not limited to •those cases cited by the parties, we find that Missouri courts have long held that where an owner is permitted to make a special use of the sidewalk, he is liable for defective conditions in such sidewalk resulting from such special use. However, when these cases are examined, it is found that the landowner has caused affirmative changes to be made in the structure of the sidewalk, and that such changes were either structurally defective or were allowed to fall into disrepair. These cases refer to such things as gratings, manholes, water meters, excavations, etc., in or near the sidewalk, which create the dangerous conditions. See Perrigo v. City of St. Louis, 185 Mo. 274, 84 S.W. 30 and cases cited therein. Our courts have held that the abutting landowner is liable for any condition which he caused, which condition in turn caused or contributed to the injury of the plaintiff. Thus in Shafir v. Sieben, Mo., 233 S.W. 419, 17 A.L.R. 637, the landowner and his contractor had completely obstructed the sidewalk with a pile of building material and they were held liable to the plaintiff, who was injured by being struck by an automobile when walking in the street, in order to go around the obstruction on the sidewalk. Likewise, in Sutton v. Fox Missouri Theatre Co., Mo., 356 S.W.2d 41, our Supreme Court found that the abutting property owner was liable for injuries incurred by the plaintiff when she attempted to skirt a crowd of theatre customers blocking the sidewalk.

Turning now to driveway cases, we first consider Moore v. Monarch Gasoline & Oil Co., 225 Mo.App. 115, 35 S.W.2d 669. In this instance, the defendant had torn out the existing city sidewalk and replaced the same with a sloping driveway for use of its customers in its gasoline filling station. Plaintiff fell on this sloping driveway when it was covered with snow and ice. The court held that the jury could find that the defendant was negligent in substituting a dangerously defective, specially constructed, driveway for the previously existing sidewalk. In Cuddy v. Shell Petroleum Corp., Mo.App., 127 S.W.2d 24, the defendant’s predecessor had constructed a sloping driveway to a filling station, and plaintiff fell when such driveway was covered with snow and ice. Again the court held that the jury could find that the normal sidewalk had been replaced by a dangerously defective sloping driveway and that the defendant was liable for plaintiff’s resulting injuries, when it maintained and used the defective structure installed by its predecessor. This holding was affirmed by our Supreme Court in State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673. In Martin v. Gilmore, Mo.App., 358 S.W.2d 462, it did not appear who had removed the sidewalk and replaced it with a specially constructed driveway, with steeply sloping concrete on each side thereof. Plaintiff fell on such sloping side of the driveway, when it was covered with ice and snow. The defendant had occupied the premises for thirty years or more, and had owned the premises for at least the last ten years, during all of which time it had maintained and used such drive. The court held that the jury could find that the driveway was defectively constructed and that defendant was negligent in maintaining and using such defective structure.

In the case at bar we have no defective structure. The defects alleged to have caused plaintiff’s fall consist of broken places or holes in the curb and sidewalk at the side of the driveway, resulting from vehicular traffic. These defects were not shown to have been caused by any vehicle operated by defendant, or anyone under its control, or for whose actions it was responsible. Defendant, and those having lawful reasons to come and go to and from the apartment house, had a right to such ingress and egress over the street and sidewalk, as part of the highway, and the use has not been shown to be excessive or unreasonable in either kind or amount. Under such circumstances, we conclude that the law, as indicated in the foregoing authorities, does not cast liability on the abutting property owner. The most recent case in this state considering the liability of an abutting property owner for defective sidewalks is Hart v. City of Butler, Mo., 393 S.W.2d 568. Although this case did not involve a driveway, the court therein carefully considered the basis for such liability. It was there pointed out that as a general rule the duty and obligation to keep and maintain the public sidewalk in a reasonably safe condi-r tion for use by pedestrians rests solely upon the city. However, it was also pointed out that there is a well established exception to such rule, which imposes liability on an abutting landowner, where he creates a dangerous condition “by his affirmative act.” The court further stated that the abutting landowner “is to be held liable to this plaintiff only upon proof that the condition causing her injuries was created by its own affirmative act.” The court also said concerning the abutting landowner, “It is liable only if, by its willful act or negligent omission, it caused the pipe to create a dangerous obstruction on the sidewalk.” The court there concluded, as we conclude in the case at bar, that “the record is devoid of any proof that the condition causing plaintiff’s injuries was created by the [abutting landowner’s] affirmative act.”

On the basis of the foregoing we conclude that there is no evidence of any affirmative act on the part of the defendant in the case at bar, which caused the defects resulting in plaintiff’s injury and that, under the fact situation revealed, the trial court properly entered judgment for defendant. Such judgment is affirmed.

All concur.


author: BLAIR, Judge.

text:
    STATE of Missouri, Respondent, v. Ned OSBORNE, Appellant.
    No. 24533.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1967.
    Petition for Writ of Certiorari Denied May 8, 1967.

      R. H. Moore, Kansas City, for appellant.
    Lawrence F. Gepford, Pros. Atty., Kansas City, for respondent.
   BLAIR, Judge.

Misdemeanor. In the Circuit Court of Jackson County, Missouri, the charge against the defendant, Ned Osborne, was that on the 27th day of October, 1964, he had fathered four children out of wedlock and that they were under the age of 16 years and he did “unlawfully, wilfully and without good cause * * * abandon said children, and from said above date, to this date, (December 2, 1964) and thence hitherto did unlawfully, wilfully and without good cause, fail, neglect and refuse to maintain and provide for said children.” The trial was before the court. It found the defendant guilty of the “offense of child abandonment” and not of the charge of failing, neglecting and refusing to “maintain and provide for” his children. This distinction should be borne in mind. Its finding has the force and effect of a verdict of a jury. Rule 26.01, Missouri Rules of Criminal Procedure, V.A.M.R. He was sentenced to serve one year in jail for his offense. At the trial he was represented by counsel and he is so represented before us. He filed a brief and his counsel argued the case to us orally. He has had his days in court. Our examination of the information discloses that it is sufficient to sustain the finding and judgment. We will discuss it further in another connection. The finding of guilt and the judgment are in due form and the sentence is within the legal limits.

The motion for a new trial, on which the defendant was duly heard, and this was allocution, contains five grounds. We shall consider these grounds in what seems to us the logical order. One ground is that “Rule 78.01 Granting a New Trial states: ‘A new trial may be granted for any of the reasons for which new trials have heretofore been granted. The court may award a new trial of any issue upon good cause shown and in any case where there has been a failure of proof. * * * What defendant means by this ground we cannot say but it is enough to say that Civil Rule 78.01 which he cites has no application to criminal cases. Its counterpart is Rule 27.19, Missouri Rules of Criminal Procedure, V.A.M.R., and he does not mention it or intimate how we should apply it. This general ground directing us to an inapplicable civil rule, not to the applicable criminal rule, and setting forth nothing in detail and with particularity, presents nothing for review. Rule 27.20, Missouri Rules of Criminal Procedure, V.A.M.R.; State v. Alberson, Mo., 325 S.W.2d 773; State v. Terry, Mo., 325 S.W.2d 1. The next two grounds are “The verdict in said cause is against the evidence, against the weight of the evidence, and against the law under the evidence,” and “The court erred in rejecting competent, relevant and material evidence offered by the defendant.” These two grounds present nothing for review for they too fail entirely to set forth in detail and with particularity the specific theories on which they are based. The last two grounds of the motion for a new trial are: “The court erred in not sustaining defendant’s motion for a Judgment of Acquittal” and “The burden is on the state to prove every constituent element of the offense; and must further show that the child is actually in need of food, clothing, and lodging; and it is required that the state prove paternity of the child and no such proof was offered, and that proof of paternity is a condition precedent to prosecution for nonsupport.” We consider this last ground of the motion as explanatory of the preceding ground stating that the court erred in not sustaining defendant’s motion for a judgment of acquittal and we construe it as embracing all of the defendant’s theories of the supposed defects in the evidence he desires to present on this appeal.

Of course, it goes without saying that the state is always obliged to establish every constituent element of the offense. This is proverbial. State v. Akers, Mo.App., 287 S.W.2d 370, 372. Of course, one of the constituent elements of the offense was the paternity of the defendant. State v. Williams, Mo.App., 349 S.W.2d 375, 378. The contention that the state failed to establish that he was the father of the children named in the information requires no more than notice. The mother of the children testified that she and the defendant lived together in the same house for eight years and that the children were born during those years and that the defendant was their father. She was not even cross-examined about her testimony on this branch of the case. The defendant corroborated her testimony that he had lived with her continuously in the same house for the same period of eight years. Indeed, he testified that they bought the house together and that they still owned it at the time of the trial. He testified that he always delivered his pay check to her for her support and that of the children and himself. He admitted that she gave birth to the four children during this eight year period. He admitted that during this eight year period they slept in the same bed and regularly had sexual intercourse. The mother of the children testified that she had never had sexual intercourse with any other man during this eight year period. He did not challenge this testimony. When it was squarely put to him whether he was the father of these children he entered no denial. He did indicate that he was somewhat dubious about his fatherhood of the “last one”, saying “She was really light in color and what-have-you, and didn’t possess any traits, you know, that I possess, or what-have-you, you know. A child usually have some trait or something that you recognize.” But he did not deny that he was the father of this last child. He did not even question that he was the father of the other three children. The finding of the trial court that he was the father of these four children was supported by competent and substantial evidence.

Appellate courts review criminal cases tried before the court without a jury-in the same manner they review those cases when tried before the court and a jury and if there is competent and substantial evidence which supports the finding of the court or the verdict of the jury, it must be allowed to stand. State v. Sargent, 241 Mo.App. 1085, 256 S.W.2d 265, 268; State v. Williams, Mo.App., 349 S.W.2d 375, 377. In view of the evidence recited, we are entirely without authority to question the trial court’s finding on the issue of paternity.

[8] The contention that the state “must further show that the child is actually in need of food, clothing and lodging” is altogether without merit. It harks back to statutes of other days and rulings of other times. Obviously, the defendant has overlooked that his prosecution is based on Sec. 559.350, R.S.Mo.1959, V.A.M.S. We notice that this statute was repealed in 1965, but it was in full force and effect at the time defendant was charged with abandoning his children and it stood when he was convicted. Its pertinent parts are: “(I)f any man or woman shall, without good cause, abandon or desert or shall without good cause fail, neglect or refuse to provide adequate food, clothing, lodging, medical or surgical attention for his or her child or children born in or out of wedlock, under the age of 16 years, * * * whether or not, in either such case such child or children, by reason of such failure, neglect or refusal, shall actually suffer physical or material want or destitution”, he or she shall be adjudged guilty of a misdemeanor. Defendant cites decisions from our appellate courts construing earlier statutes which were supplanted by Sec. 559.350, R.S.Mo.1959, V.A.M.S. By this statute, applicable to him at the time of his offense, the General Assembly made it wholly unnecessary for the state to establish that a parent charged with “failing, neglecting or refusing to provide adequate food, clothing, lodging, medical or surgical attention for his or her children” thereby caused the child actually to suffer physical or material want or destitution.

Earlier and different statutes were indeed construed as requiring the state to establish that a child actually suffered physical or material want or destitution The defendant deals in other days. Under former statutes, a callous parent could entirely forsake his legal and moral obligations to his-child and still be guilty of no criminal offense if the child was adequately cared for by others. State v. Thornton, 232 Mo. 298, 134 S.W. 519, 32 L.R.A.,N.S., 841; State v. Vogel, Mo.App., 51 S.W.2d 123; State v. Russell, Mo.App., 102 S.W. 2d 727. Sec. 559.350, R.S.Mo.1959, V.A.M.S., was advisedly enacted to destroy the exemption these earlier and different statutes and rulings allowed to parents failing to discharge their duty to their children if others provided for them adequately. Beyond all doubt, as a mere reading of it demonstrates, it accomplished that purpose.

Idle it is to call our notice to decisions which ruled that the putative father of an illegitimate child was not subject to civil liability for its support and that this burden was on the mother under the common law. We have so ruled. State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85; James v. Hutton, Mo. App., 373 S.W.2d 167. Other appellate courts have ruled the same. Heembrock v. Stevenson, Mo.App., 387 S.W.2d 263; State v. White, 363 Mo. 83, 248 S.W.2d 841. About this there is no question. But this is no civil proceeding. This is a criminal prosecution and rulings which denied civil liability are wholly without materiality in the criminal cause we now hold in judgment. The General Assembly had a right to declare it a crime for a parent to abandon his children without good cause.

There is another reason why there is no merit in this last complaint. The charges against the defendant were two in number: (1) Abandoning his children without good cause, and (2) “unlawfully, wilfully and without good cause” failing and refusing “to maintain and provide for said children.” The charge that the defendant abandoned his children is obviously sufficient and it was of this charge alone that the trial court found him guilty. We refer the reader to the first paragraph of this opinion and to Sec. 559.350, R.S.Mo. 1959, V.A.M.S. It did not find him guilty of failing to maintain and provide for his children. Of this last charge he stands acquitted.

Our view is that the attempted charge of failure to “maintain and provide” for his children is, to say the least, questionable as a charge that the defendant violated Sec. 559.350, R.S.Mo.1959, V.A.M.S., by failing, neglecting and refusing to provide his children with “adequate food, clothing, lodging, medical or surgical attention” without good cause. A charge of failure to “maintain and provide” for one’s children could mean very much or very little and what it says is quite vague. Sec. 559.350, R.S.Mo.1959, V.A.M.S., is specific in declaring what failures, neglects and refusals infringe it. This appeal does not call for us to decide this question. We leave it for prosecutors to examine in the future before they write charges under the law that may then be in force. 15A., Mo. Digest, Indictment & Inf., 109.

The state had the right to combine both offenses in one information and in one count in this instance. It did so. Yet it was required to prove only one to justify a conviction. “ ‘(T)he rule is that no more than one offense can be charged in one count, but there are exceptions. When a statute in one clause forbids several things, or creates several offenses in the alternative, which are not repugnant in their nature or penalty, the clause is treated in pleadings as though it created but one offense; and they may all be united conjunctively in one count, and the count is sustained by proof of one of the offenses charged.’ So far as we are advised, in misdemeanor cases, the doctrine above stated has been followed in this state. It is textbook law from the earliest date of statutory construction.” City of St. Louis v. St. Louis Theater Co., 202 Mo. 690, 100 S.W. 627, 628. This general rule governs when courts construe statutes like Sec. 559.350, R.S.Mo.1959, V.A.M.S., which we hold under scrutiny. The curious may compare State v. Thomas, 210 Mo.App. 493, 240 S.W. 857; Miller v. Gerk, Mo.App., 27 S.W.2d 444.

We have ruled all of the questions properly presented. In his brief, but not in his motion for a new trial, the defendant urges on us that he has been placed twice in jeopardy for the same offense. Sec. 19, Art. I, Const.1945, V.A.M.S. We notice this complaint under Rule 27.20(c), Missouri Rules of Criminal Procedure, V.A. M.R. But as the trial commenced, his counsel stated to the court that he had previously been convicted of wilfully failing, neglecting and refusing, without cause, to “support” these same children and that this present prosecution was a second one for the same offense. The answer to this is obvious. Assuming he had been previously convicted of not supporting his children, the trial court did not adjudge him guilty of this offense, but of the different offense of abandoning his children without cause. This is not double jeopardy. The offenses are not the same. Sec. 19, Art. I, Const.1945; 9 Mo.Digest, Criminal Law, ^195.

We acknowledge our authority, Rule 27.20(c), Missouri Rules of Criminal Procedure, V.A.M.R., to search this record at large, a pursuit some might regard as being in the interest of some manner of justice, for some reason to liberate this defendant from the consequences of his unjustified abandonment of the children he has unquestionably begotten. But does justice require it? We think not. For we believe that justice has already been done by the trial court in this unhappy controversy. For us to seek ways which the defendant did not suggest in the trial court to exempt him from his moral and legal responsibility, would be, we think, for us to do injustice, rather than justice, and this is a search we decline to make.

The judgment of the circuit court is affirmed.

All concur.

      . New sections on the same subject were enacted, Secs. 659.353, 559.356, V.A.M.S. that same year.

      . Those statutes are reproduced verbatim on pages 646-647, Yol. 40, V.A.M.S.


author: MAUGHMER, Commissioner.

text:
    Dean Charles BAY, Claimant-Appellant, v. GREAT WESTERN STAGE AND EQUIPMENT CO., Employer-Appellee, and The Travelers Insurance Company, Insurer-Appellee.
    No. 24565.
    Kansas City Court of Appeals. Missouri.
    Feb. 6, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 3, 1967.
    Application to Transfer Denied May 8, 1967.

      Robert C. Paden, Graham, Paden & Welch, Independence, for appellant.
    Harold L. Lowenstein, Rogers, Field & Gentry, Kansas City, for appellees.
   MAUGHMER, Commissioner.

We have here a claim for workmen’s compensation benefits arising from injuries sustained by the employee on August 9, 1963, when the automobile in which he was traveling from his place of employment to his home was struck in the rear by an automobile driven by a third party. It was conceded that claimant, Dean Charles Ray, at the time of the accident, was an employee of the defendant employer, Great Western Stage and Equipment Company, which company was fully insured under the Act by the Travelers Insurance Company.

The sole issue heretofore litigated is whether or not the employee, on or about August 9, 1963, sustained an injury by accident which “arose out of and in the course of his employment”. The Referee, after an extensive hearing, ruled that he did not. Upon review, the Industrial Commission (only two members sitting) held that he did. On appeal the circuit court held that he did not, reversed the Commission and entered judgment for the employer and its insurer. Claimant has appealed.

The employer Great Western Textiles which is actually a division of the Great Western Stage and Equipment Company, has offices at 1324 Grand Avenue, Kansas City, Missouri, and at all times herein mentioned was engaged in the manufacture and sale at wholesale of draperies and drapery fabrics in many midwestern states. Mr. Ray’s employment commenced about June 10, 1963, approximately two months prior tp the accident. Prior to entry upon his employment he was interviewed by Mrs. E. L. Gossage, co-owner and manager at the textile division. He was then hired by her as a traveling salesman.

In his testimony claimant set forth his version of the terms of the employment. When all of his testimony is evaluated, his version of the terms of employment is actually no different from that of Mrs. Gos-sage, the employer. He said that Mrs. Gos-sage told him he “would travel on the road selling fabric to the accounts and opening new accounts for them”, “that I would make $100 per week, plus one percent commission on sales that came in off the territory, plus $11.00 a day expenses * * *, plus automobile and credit card for maintenance of the automobile”. He stated that he was assigned all of Missouri (except Greater Kansas City), Illinois, Iowa, and “I believe Indiana, Nebraska, Colorado and New Mexico”. He said he was furnished a 1963 Chevrolet Bel Air station wagon and a Standard Oil Company automobile credit card. Claimant’s attorney asked him this question:

“Q. Pay gas and oil for strictly the time you were on business purposes or on all gas and oil? A. Only business purposes”. (Italics ours).

When the employee was not “on the road” he was expected to be in the Kansas City store or office. We quote further from the questions propounded by claimant’s attorney and the responses:

“Q. Did you ever use your car on business during working hours while you were in Kansas City? A. Yes, sometimes I did.
“Q. Working out of the store there on Grand? A. Sometimes I did.
“Q. In what capacity ? What would you do ? A. Well, a couple of times I had to take drapery fabric out to a lady’s house so she would make the draperies up for us”.

He stated that on one or two occasions he took a new salesman to a nursing home to get a contract signed, and that three or four times he took Mrs. Gossage to the hairdresser. Mr. Ray said that when he went to work he was given six sample cases of materials for exhibit to the trade and those sample cases at all times thereafter remained in the automobile he was using. It was his testimony that after the accident, which occurred on a Friday evening, he and his wife “went somewhere” that night, came home, put the children to bed and then “cleaned and pressed” the materials from the sample cases as he planned to go “on the road” the following Monday. However, on Saturday morning following the accident he worked at the office at least part of the day. He had never been instructed by Mrs. Gossage to do any such work at home. He was required to keep “territory books” which listed the names and addresses of potential customers and a statement as to their monthly purchases. It is not clear from the evidence that he ever made any such entries in these books as he made only one or two trips for the company. He also sent out post cards to prospective customers. He admitted that Mrs. Gossage never gave him any work to do at home, although he claimed to have addressed some post cards and made some entries in the territory books while he was at home.

Mrs. Gossage, by deposition, said Mr. Ray was to receive one percent commission with a guarantee of $100 per week, $11.00 per day expenses while on the road to cover the cost of meals and hotel rooms, an automobile and credit card for gas and oil when the car was in use for business purposes. She stated that he was furnished samples of their complete line and a brief case. She said Mr. Ray made only one or two trips into the territory, that she never directed him to clean and press the samples and did not know that he had done so until after the accident.

We now come to Friday, August 9, 1963, the date of the automobile accident. Claimant at the time resided at 7003 Garnett Street, Shawnee, Kansas. The office day ended at 5:00 p. m. and shortly thereafter Mr. Ray and Mr. Michael Kerns, a fellow employee, started for their homes in the company Chevrolet station wagon, with claimant driving. Mr. Kerns lived at 4407 Lloyd Street, Kansas City, Kansas. Kerns and Ray agreed that Kerns’s residence was two or three miles distant from Ray’s, but Kerns said it was “on the way”. They had been slowed by traffic on the Southwest Trafficway at the time the Chevrolet was struck in the rear by an automobile driven by a third party. Mr. Kerns said that Mr. and Mrs. Gossage drove by a few minutes after the accident, were “flagged down” by Mr. Ray, who told them that neither he nor Kerns was hurt and the automobile had no serious damage. Mr. Kerns also worked as a salesman and said the Great Western Textiles had facilities on the second floor for “serging, pressing, completely revamping of fabrics and if they needed to be cleaned, they were sent out to be cleaned by the company”. It would seem therefore that if Ray’s samples needed pressing it could have been done at the office on Saturday, the day after the accident. There is no suggestion or contention made that Mrs. Gossage or any one in authority directed or requested claimant to take Mr. Kerns home or that they even knew he did so. There is no evidence that Mr. Ray was given any work to do at home or away from the office except while on trips into the sales territory. It is quite evident that claimant was not injured while on employer’s premises or while entirely on the job. If, therefore, he is to prevail it must be because he comes within what is generally referred to as the “dual purpose” travel doctrine; that is, there existed not only a personal mission and purpose but also some employment objective.

The Referee found that the employee “failed to prove that he sustained an accident arising out of and in the course of his employment” and denied compensation. Upon review, the Commission found that the employee “sustained an accident arising out of and in the course of his employment”, resulting “in injury to the low back and aggravation of a pre-existing condition thereof”. The Commission further stated: “We believe to be controlling the case of Corp v. Joplin Cement Company et al., Mo.Sup., 337 S.W.2d 252”. The total award was made up of the following allowances:

Medical 'aid not furnished by employer or insurer, $1,288.60
14 and %ths weeks’ healing period, at $47.50, 685.37
40 weeks permanent partial disability at $42.50, 1,700.00
Total award, . $3,673.97

Both parties appealed to the circuit court. The claimant appealed “only as to the insufficiency of the permanent, partial disability allowed and also as to the finding of a pre-existing herniated disc”. The circuit court set aside the finding of the Industrial Commission and entered judgment for the employer and the insurer. The circuit court found and held: “That the award of the Industrial Commission is not supported by competent and substantial evidence on the whole record; that the Industrial Commission could not have reasonably made the findings and reached the results on a consideration of all the evidence”. Claimant has timely appealed.

The burden is upon the employee to show that the accident “occurred in the course of and arose out of the employment” within the meaning of the Act. Mershon v. Mo. Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165, 167; Sanderson v. Producers Commission Ass’n. et al., 360 Mo. 571, 229 S.W.2d 563, 566-7. However, we review the whole record in the light most favorable to the award of the Commission and if there is substantial evidence to support such allowance, we should affirm the action. Blair v. Armour and Company, a corporation, Mo.App., 306 S.W.2d 84, 88. The function of the reviewing court is to determine if the award is supported by competent and substantial evidence on the whole record. It cannot substitute its judgment on evidence for that of the Commission, but it can set aside such decision if it is clearly contrary to the overwhelming weight of the evidence. Corp v. Joplin Cement Co., supra, syl. 5.

The Commission bottomed its award on the opinion in the case of Corp v. Joplin, supra. Claimant on appeal also relies upon Corp, but primarily upon Sanderson v. Producers Commission Ass’n., supra. We review those two cases and the opinion in Gingell v. Walters Contracting Corporation et al., Mo.App., 303 S.W.2d 683, written by Judge Cave of this court. All three of those cases recognize and apply the dual purpose travel doctrine as was enunciated by Judge Cardozo in Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 183. This doctrine, in effect, is that if the work of the employee creates the necessity for the travel, he is in the course of his employment, even though he at the same time is serving some purpose of his own.

In Corp v. Joplin, supra, the employee died from injuries received in an automobile accident. He had been employed as an “insulator’s helper”. He had been working on a job in Winfield, Kansas, about 175 miles west of his home, which was just north of Joplin, Missouri. He was paid expenses for one trip to and from the job site, but usually came home each week-end at his own expense. On the day of the fatal accident, the employee left his home, located a few miles north of Joplin, to go to the company plant in Joplin. The purpose of the trip was to get his pay check and also to procure some building materials to take back to the job in Winfield on the following Monday. It was not necessary for him to personally pick up his pay check. It would have been mailed to him. The building material which he loaded in his automobile consisted of a substantial quantity of canvas and a load of sheeting. In the opinion (337 S.W.2d p. 256) the Supreme Court commented: “The pertinent inquiry is whether employee Corp was directed by his employer to pick up the building materials and transport them to the job site in Winfield * * * There was substantial evidence that Corp had previously carried supplies to the Winfield job in his automobile. The employer’s general manager said that it was necessary to have those materials on the Winfield job and if Corp had not taken the canvas it would have to be sent by truck or rail. The Winfield job foreman’s testimony tended to prove that either he or Mr. Corp’s immediate superior instructed Mr. Corp to pick tip those materials and take them to Winfield. He said that while Corp was not required to pick up and haul the materials, if an employee did not do what he was told, the employer would likely get someone who would. The facts in this case present the elements of the dual purpose doctrine. The employee’s personal mission was to pick up his pay check, the business purpose was to pick up and load the building materials for transportation to the Winfield job site. The employer had directed him to do so. The loading of the materials and the transportation thereof were not for the employee’s convenience nor was it a part of his personal work. It was rather for furtherance of the business of the employer. The appellate court allowed recovery, thereby reversing the Commission.

In the Sanderson case, supra, the Commission again denied benefits. The circuit court reversed and the Supreme Court affirmed the circuit court. The employee was fatally injured on January 14, 1948, after he had finished his day’s work and while he was traveling to his home in his employer’s automobile. When he was first employed as a hog buyer, there was “no talk about transportation at all”. In the spring of 1946, he was placed in charge of employer’s stations at Malta Bend and Sedalia. He drove daily to those points from Kansas City in an automobile belonging to and furnished by the employer. Those stations were closed in October, 1947. The employee continued to use the automobile in driving to and from his work at the stock yards and in making probably eight or ten trips into the country to locate marketable hogs and solicit their shipment to Kansas City. Employer paid for the oil and gasoline used by the employee in his operation of the automobile owned and furnished by the employer. Employer’s manager said that Mr. Sanderson arrived for work at 6:30 or 7:00 o’clock (occasionally at 6 o’clock) which was “earlier than some of the sales staff in his department arrived on the job to get the preliminary duties of the day’s work accomplished * * * We set out two questions and answers from the examination of the company manager in. Sanderson:

“Q. When he took the car to and from work, was that for any company purpose whatsoever? A. ' No,. * *
“Q. When you permitted him to take this car home was part of that for his convenience in getting to work in the morning at that time ? * * *• A. Partly, yes, sir, because we allow that in other departments as. well. * * * ”,

In Gingell v. Walters, supra, the Commission awarded benefits. Both the circuit court and this court approved the award. In this case the employee lived in Kansas-City. His work was at Knobnoster, Missouri, approximately sixty miles from his-home. He was a welder and had no duties, to perform except at the work site. Under the union contract he was paid $3.20 per day “travel expense”. That amount was. paid to each workman. We quote in part from the opinion as follows:

“After the work had been cancelled on-Wednesday morning, a number of employees were standing around in the-office of the employer and Leo Kohl asked if anyone was going to Kansas City.. Gingell replied that he was, and ‘he-(Kohl) asked me if I would pick up some-tarpaulins at Kansas City and bring them back the next day, and I said I would.
‘Q. He asked you to pick up these tarpaulins in Kansas City? A. Yes, either English Brothers or another place, I have forgotten now.
‘Q. Did he instruct you as to how to pay for them? A. He told me to pick them up, and sign a ticket, one of them tickets with a construction company, it would be mailed by check, I guess, paid to them later on.
‘Q. He told you to sign for them. A. Yes, * * *
‘Q. Do you know what they were to be for? A. To cover some machinery, the welders, you know, to keep from getting wet or to cover something on the job.’
“At about the same time, a Mr. Treu, an employee of Walters Company out of its New York office, stated that he wanted to return to New York that afternoon and asked Gingell if he would take his two bags to the airport in Kansas City and check them in his name, and Gingell •consented to do so.
⅜ ‡ ⅜ ⅜ ⅝ ⅝
“We think the same formula is applicable when an employee, in the course ■of his normal journey to and from work, performs some concurrent service for his employer, and becomes an exception to the general rule excluding off-premises .going-and-coming journeys — such as going from his home to his place of employment or returning therefrom to his home. The question then becomes: Was this mission of such character or importance .that it would have necessitated a trip by .someone if this employee had not been .able or willing to handle it in combination with his homeward journey ? (Italics added).
“We conclude that the services requested by Mr. Kohl and Mr. Treu were of such a pressing need that had not Gingell •consented to perform them, then some other person would have been required to make the trip for such purposes. That being true the commission properly found that employee’s injuries arose out of and in the course of his employment”.

In those three cases (Corp, Sanderson and Gingell) it is not difficult to apply the dual purpose doctrine. Corp was directed to and did pick up materials for transportation to and use on the job site, not for his convenience, but to enable progress to continue on the job. Moreover, he had been specifically directed to do this very thing. Likewise in Gingell, the employer’s foreman asked the employee to pick up some tarpaulins in Kansas City and bring them back to the job site. This task and the performance thereof were clearly business of the employer which employee had been specifically directed to undertake and carry out. In Sanderson, a closer question is presented, but there employee was required to be at work earlier than most of the others and his foreman said the purpose in permitting him to take the car home was partly to enable him to get to work earlier in the morning — a requirement specifically demanded by the employer. Furthermore, in this case it was conceded that the employer paid for the gas and oil in the operation of the automobile from the employee’s home to the place of employment.

Claimant also invites our attention to Sylcox v. National Lead Co. et al., 225 Mo.App. 543, 38 S.W.2d 497. We quote briefly from that opinion (p. 500):

“In the case at bar the transportation to and from his home was furnished to plaintiff by his employer as a part of the consideration for his work. Such fact was solemnly pleaded in his petition, and his evidence tended to show it. There is therefore no occasion to speculate about plaintiff’s right to have received trans--portation, for it was expressly contemplated by his contract of employment”.

Section 287.020(6) V.A.M.S. provides:

“Without otherwise affecting either the meaning or interpretation of the abridged clause, ‘personal injuries arising out of and in the course of such employment’, it is hereby declared not to cover workmen except while engaged in, or about the premises where their duties are being performed, or where their services require their presence as a part of such service”.

On the main question involved in the case before us we quote twice from Larson’s Workmen’s Compensation Law, Vol. 1.

Section 18.24:

“The mere fact that claimant is, while going to work, also carrying with him some of the paraphernalia of his employment does not, in itself, convert the trip into a part of the employment. For example, the mere fact that at the time of the accident the employee had with him some of the tools of his trade, such as a steamfitter’s hard hat, a pocket rule, and a level, all belonging to the employer, does not make the accident compensable”.

Continuing, Mr. Larson states there must be two purposes existing on the homeward trip if the dual purpose doctrine is to apply: the personal purpose of making a normal trip home, and the business purpose of reaching a second employment situs. He then states and we use his exact words:

Section 18.31, “Dual Purpose Doctrine applied to home work:

“Adherence to this methodical process of analysis in particular cases can help remove some of the uncertainty that attends the many familiar situations involving teachers who prepare lessons or correct papers at home, lawyers who take home briefs, salesmen who work on accounts at home, and newspapermen who polish up a bit of writing at home — all of whom might be tempted under a more vague rule to assert compensation coverage of all their movements to, from or around the house by virtue of some morsel of work carried around in their pockets”.

We are told in 99 C.J.S. Workmen’s Compensation § 209 page 681:

“ * * * that an injury arises out of the employment when there is apparent to the rational mind, on consideration of all of the circumstances, a causal connection between the conditions under which the work is required to he performed and the resulting injury”. (Italics ours).

In Trent v. Collin S. Tuttle & Co. Inc., et al., 20 A.D.2d 948, 249 N.Y.S.2d 140, 141, 142, the Supreme Court, Appellate Division New York, said this:

“It is urged that since claimant had left her home earlier than usual and was carrying with her a report which she had worked on at home on the previous evening, she was not merely going from her home to her place of employment but rather from one location where she had performed duties for her employer (her home) to another location where she would complete those duties (the office). If this argument were accepted, any time an employee performed even an occasional piece of work at home at his employer’s direction or even with his employer’s permission or knowledge express or implied the risks of travel to and from employment on such an occasion would be incidents of employment. Such a position is untenable. Rather it would seem that unless the employee’s home is truly a second employment location in that more than occasional employment services are required to be rendered there (see Matter of Tiernan v. Potter, 281 App.Div. 787, 118 N.Y.S.2d 431) travel to and from work is not a risk of employment. Here claimant on her own initiative and without her employer’s knowledge chose to take the work home rather than complete it at her place of employment. Such action alone does not create a second situs of employment”. (Italics ours).

In the case before us we find no substantial evidence that (1) employer contracted to pay claimant’s transportation costs from his home to the office; (2) claimant was either to perform any part of his work at home or that his duties required him to do so; (3) that at the time of the accident claimant was in the performance of any duty which the employer requested, required or even knew was being performed at home. On the contrary, the testimony of both claimant and Mrs. Gossage is that under the contract the employer was to pay for gas and oil only for business trips; that employer provided for cleaning and renovating of samples at the office, and that employer did not even know that the employee had done any such work at home until after the accident when the employee so reported. The same comment applies to the addressing of postal cards and the making of entries in the “territory books”. These activities are quite similar to school teachers grading papers at home, lawyers who take home briefs, salesmen who work on accounts at home and newspapermen who polish up a bit of writing at home, none of whom are covered, as stated by Larson, supra.

In our opinion the Industrial Commission could not have reasonably found that claimant’s injury “arose out of and in the course of his employment”. Therefore, the finding of the circuit court reversing the award of the Commission and entering judgment for the employer is, we believe, the correct decision.

It appears that since the appeal reached this court the employee has made a settlement, for the sum of $16,000, of his claim against the negligent third party — the driver of the automobile which struck his vehicle from the rear. The employer has filed in this court a motion “to dismiss the appeal for the reason that there is no justiciable controversy before the court”. In support thereof the following facts are alleged by affidavit: (1) appellant has settled his claim against the negligent third party for the sum of $16,000; (2) claimant’s award by the Commission totals $3,673.97; (3) if claimant’s contention as to what the award should have been is sustained, his compensable recovery would be $5,798.97 and (4) the third party net recovery exceeds his possible compensation recovery and accordingly there is no justiciable controversy. Appellant answered, admitting the $16,000 settlement but alleged the expenses of such recovery exceeded $8,000 and asserting that employer is lawfully bound to pay a proportionate share of the third party recovery costs, including attorneys’ fee.

Since we are holding that claimant’s injury did not arise out of and in the course of his employment, it appears to be unnecessary to consider either the employer’s motion to dismiss or the employee’s assertion that the uncontroverted evidence entitles him to a higher rating and larger award.

The judgment of the circuit court is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


author: ANDERSON, Presiding Judge.

text:
    Edward PHILLIPS, Plaintiff-Appellant, v. Janies CARROLL, d/b/a Schilli Tire Service, Defendant-Respondent.
    No. 32480.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.

      See also Mo.App., 379 S.W.2d 143.
    William L. Panned, Festus, R. C. Reis, St. Louis, for plaintiff-appellant.
    Charles A. Weber, Ste. Genevieve, Lus-ser, Hughes & Lusser, Rene J. Lusser, St. Louis, for defendant-respondent.
   ANDERSON, Presiding Judge.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, Edward Phillips, as a result of defendant’s negligence. The trial below resulted in a verdict and judgment for plaintiff in the sum of $3,000.00. Thereafter, defendant filed a motion for judgment in accordance with his motion for a directed verdict. This motion was sustained by the trial court and a judgment was entered for defendant. From this judgment, plaintiff has appealed.

Plaintiff, at the time he was injured, was employed by St. Mary’s Truck Line as a mechanic. On that day (July 11, 1949) it was discovered that one of the trailers belonging to said truck line had a flat tire. Thereupon, plaintiff drove a tractor to defendant’s place of business to pick up a replacement for the flat tire. Defendant, James Carroll, who carried on business as Schilli Tire Service, did recapping and tire repair work for St. Mary’s. On the day in question, plaintiff picked up a tire mounted on a rim which had been previously delivered to defendant. The tire was inflated. Plaintiff did not remember whether the tire was new, or one that had been recapped. Plaintiff, with the help of one of defendant’s employees, loaded the tire on one of the tractor saddle tanks located on the rear of the tractor behind the cab. According to plaintiff’s testimony, the tire weighed every bit of one hundred pounds and was bulky and hard to handle. The saddle tank was about 40 inches above the ground. Plaintiff did not test the air pressure in the tire at the time, and did not know what the pressure was. Plaintiff did not secure the tire in any way after it was loaded onto the saddle tank. Defendant’s place of business was three blocks from St. Mary’s yard. Plaintiff drove this three blocks at a slow speed without stopping. When he arrived at the St. Mary’s yard, he proceeded to remove the tire from the saddle tank. No one helped him. When he started to remove the tire, it was lying flat on the saddle tank. Plaintiff pulled the tire toward him and began lowering it over the rounded part of the saddle tank toward the ground. The rim assembly was toward his body and the tire against his body. When the tire was about a foot from the ground, it exploded. At that time, plaintiff had his arms around the tire and his face and body against it and the tire rim. The rim flew out striking plaintiff in the chest and face. As a result, his chest was bruised; the left side of his face bruised; and his jaw fractured.

In mounting a tire the following procedure is employed. The tube is placed in the tire, and then placed over the main rim. A retaining rim is then put in place and a lock rim placed under the lip on the main rim. The tire is held on the rim by the lock rim and the pressure of the tire. The lock rim is put in place by prying with a tire tool, and seated with the use of a hammer.

As the tire is inflated, the seating process is continued until it is tight. Plaintiff testified that it is necessary to tap or hammer the lock rim in place as the tire is being inflated, and for that reason, they do take quite a beating; that they do get knicks as a result. He further testified a little knick could let the rim blow off.

Russ Bauman testified for plaintiff. He testified that he was in the tire business at Crystal City, Missouri; that he had been engaged in the tire business for twelve years; that at least half of his business was in connection with truck tires or truck rims; and that he had had experience in dealing with rims such as those involved in this case.

The witness gave the following testimony:

“Q. Now, based again on your experience in the tire business, would you tell us what would cause a rim to explode off of a tire, or this type of equipment?
“A. Well, frankly, any rim or any compressed air, any tire mounted on any rim is dangerous and all precautions must be taken. * * *.
“Q. Well, what would cause a rim to explode off of an inflated tire?
“A. There could be numerous things. The lock rim could be bent or sprung and at the time you are airing this tire you must exert a certain amount of pressure on a sprung rim to get it to slide into the slot on the rim to see that the rim is seated properly. Now, if you have a bent rim there are times where it is almost impossible to get that lock rim to seat and you take chances in some of those cases.
⅜ ‡ ⅜ sfc ⅜ ⅜
“Q. Well, could a person experienced in the tire business discover the condition which you have testified to of a bent or sprung rim at the time the tire was mounted ?
“A. I feel that you could see, you could possibly see in airing the tire if * * * the rim was bent or not. * * * If a rim is sprung you can see if it’s sprung.
“Q. Well, Mr. Bauman, am I correct from your testimony that what would cause a rim to explode off of there would be the fact that the rim was improperly seated ?
“A. That’s right.
******
“Q. Mr. Bauman, if the retaining rim is properly seated, is there any way that the tire can come off and the rim explode off of the wheel ?
“A. If the retaining rim is properly seated ?
“Q. Properly seated, yes, sir.
“A. No, I don’t think there would — In a case such as that I don’t think there would be a way it could come off.
“Q. * * * If that retaining rim is properly seated can it be so determined by visual inspection ?
“A. Yes, I’d say it can.”

At the close of all the evidence, defendant filed a motion for a directed verdict. The grounds of said motion were that plaintiff had failed to prove defendant guilty of actionable negligence, and that under the facts plaintiff was shown to be guilty of contributory negligence as a matter of law. This motion was by the Court overruled.

Plaintiff submitted his case by Instruction No. 2, which Instruction reads as follows :

“Your verdict must be for the plaintiff if you believe:
“First, defendant repaired the truck tire, and
“Second, the truck tire had been improperly repaired and mounted and the retaining rim was improperly seated, and was thereby dangerous to person using it in the manner and for the purpose intended in the vicinity of its probably (sic) use while it was being used in the manner and for the purpose intended, and
“Third, defendant knew or by using ordinary care could have known of the dangerous condition, and
“Fourth, the plaintiff did not know and by using ordinary care could not have known of the dangerous condition, and
“Fifth, defendant failed to warn plaintiff of such dangerous condition, and
“Sixth, defendant was thereby negligent, and
“Seventh, while the truck tire was being used in the manner and for the purpose intended, plaintiff was damaged as a direct result of such dangerous condition.”

Appellant assigns as error the action of the trial court in setting aside the verdict and judgment, and in entering judgment for defendant. In support of this assignment, it is urged that there was substantial evidence that plaintiff’s injuries were due to the negligence of defendant in improperly mounting the tire in that the retaining rim was not properly seated, and in failing to warn plaintiff of this condition which was dangerous and could have been ascertained by visual inspection.

There was no direct evidence that the rim in question was not properly seated or that it was bent or sprung at the time the tire was mounted on the main rim by the defendant. To prove this fact and defendant’s responsibility therefor, plaintiff relied on circumstantial evidence and the testimony of Russ Bauman. The facts and circumstances relied upon by plaintiff are: (1) that defendant did most of the tire repair work for St. Mary’s; (2) that several days prior to the day in question, defendant picked up some rims at the St. Mary’s yard; (3) that plaintiff picked up the tire at defendant’s place of business; (4) that the tire was inflated at the time it was picked up; (5) that an employee of defendant assisted plaintiff in placing the tire on the tractor saddle tank; and (6) the tire exploded when it was being removed by plaintiff from the tractor saddle tank. The testimony of Russ Bauman was in substance that there were numerous things that could cause such a rim to explode off of an inflated tire; that the lock rim could be bent or sprung making it almost impossible to get the rim properly seated which condition would cause the rim to explode; and that he felt this condition could possibly be seen by a person experienced in the tire business when inflating the tire. He further testified that if the retaining rim was properly seated, “I don’t think there would be a way it could come off.”

The burden of proof was on plaintiff to prove that defendant was guilty of the negligence submitted and that said negligence was the proximate cause of plaintiff’s injuries. The proof of these elements of his case may be made by circumstantial evidence and opinion evidence where appropriate, but the evidence relied on must be such that the facts necessary to a verdict must reasonably follow without resort to guesswork, speculation and conjecture. Lindsay v. Wille, Mo., 348 S.W.2d 1; Greenwood v. Vanarsdall, Mo.App., 356 S.W.2d 109; Foster v. Sacco, Mo.App., 343 S.W.2d 171; Vietmeier v. Voss, Mo., 246 S.W.2d 785.

In our judgment, the evidence in this case did not meet the standards set out in the above cited cases. The testimony of witness, Bauman, was not sufficient to establish a defect in the rim for the reason that it was not based upon a reasonable degree of certainty. After testifying that there were numerous things that could cause the rim in question to explode off of the wheel, he said he did not think the rim could come off if the rim was properly seated. In our opinion, this testimony was not of sufficient probative value as to amount to substantial evidence of improper seating of the rim. Armstrong v. Croy, Mo.App., 176 S.W.2d 852. In this state of the record, there was no substantial evidence to support the required findings under plaintiff’s Instruction No. 2. It did not point with reasonable certainty to the negligence submitted. Grissom v. Handley, Mo. App., 410 S.W.2d 681.

The judgment is affirmed.

RUDDY, and WOLFE, JJ., concur.


text:
    Floyd E. BECKER, Plaintiff-Appellant, v. ST. FRANCOIS COUNTY, and M. J. Mount, Roy Presnell, and Denny Smith, Judges of the St. Francois County Court, Defendants-Respondents.
    No. 32692.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.
    Roberts & Roberts, Farmington, for plaintiff-appellant.
    Jack Moore, Pros. Atty., David L. Colson, Asst. Pros. Atty., Farmington, for defendant-respondent.
   ANDERSON, Presiding Judge.

This is an action for a declaratory judgment brought by Floyd E. Becker against St. Francois County, and M. J. Mount, Roy Presnell and Denny Smith, Judges of the County Court of St. Francois County.

The petition in substance alleged that an audit of plaintiff’s books and records made by the state auditor for the period beginning January 1, 1956 and ending December 31, 1961, showed that plaintiff had been overpaid by the County for preparing financial statements in the sum of $1,618.72, and for extending the tax books-of said County in the sum of $1,362.-22; and that said audit further showed an overpayment to plaintiff of $1,200.00 as salary for the year 1963, and an overpayment to him for extending the tax books for that period in the sum of $1,367.92.

It was further alleged that said audit was erroneous; that said amounts were correctly paid to plaintiff according to established procedures and as provided by statute; that there was therefore a dispute between plaintiff and the County Court in that said County Court was demanding that plaintiff reimburse the County for said alleged over-payments which plaintiff claimed were properly paid under the law; that said controversy was the result of conflicting interpretations of the statutes pertaining to County Clerk’s fees.

The prayer of the petition was that the Court determine that the above mentioned sums should be allowed plaintiff in accordance with the statutes and that the Court declare that plaintiff was not required to reimburse the County for the sums alleged to be overpayments in accordance with said auditor’s report.

Defendants filed an answer praying that the Court “order, adjudge, decree and determine and declare that the fees received by the County Clerk, as set out in the audit of the State Auditor from January 1, 1956, to December 31, 1961, and from January 1, 1962, to January 29, 1964, be disallowed plaintiff and that the Court declare that the plaintiff reimburse the County for his over payment in accordance with the auditor’s report * *

Thereafter, a trial was had on the issues raised by the pleadings and a judgment was rendered declaring that plaintiff was indebted to St. Francois County in the amount of $2,880.83. From this judgment, plaintiff has appealed.

It appears from the transcript that the County of St. Francois is a party to the record in said cause and that the judgment appealed from was in its favor. Therefore, this Court is without jurisdiction, Mo. Constitution, Art. V, Sec. 3 V.A.M.S.; New Madrid County v. Phillips, 125 Mo. 61, 28 S.W. 321; Cook v. St. Francois County, 349 Mo. 484, 162 S.W.2d 252.

The cause is transferred to the Supreme-Court of Missouri, the only Court having jurisdiction of the appeal.

RUDDY, J., and THEODORE Mc-MILLIAN, Special Judge, concur.

WOLFE, J., not sitting.