author: WELBORN, Commissioner.

text:
    Ronald V. OWENS, Respondent, v. ESTATE of Jessie P. SAVILLE, Deceased, Joe Beavers, Administrator, Appellant.
    No. 51946.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.

      Thomas J. Stephens, Jerold L. Drake, Stephens & Drake, Grant City, for respondent.
    Roscoe E. Moulthrop, Bethany, George E. Flagg, Des Moines, Iowa, for appellant.
   WELBORN, Commissioner.

Ronald V. Owens filed a claim against the estate of Jessie P. Saville, deceased, in the Probate Court of Worth County, Missouri, for $18,000 for personal services rendered by the claimant to the decedent. The probate court on its own motion transferred, the claim to the circuit court. Upon trial, a jury returned a verdict in favor of the claimant for $18,000.00. The administrator of the decedent’s estate has appealed.

Jessie P. Saville, a resident of Ringgold County, Iowa, died October 19, 1960. She left a will which was admitted to probate and in which Ronald V. Owens, the claimant here, was named executor. Owens, a resident of Iowa, was appointed and qualified as executor. The will made bequests of $1,000 to each of two churches and gave the remainder of the estate to a trustee upon a charitable trust for the benefit of eight specified institutions.

Mrs. Saville owned real estate in Kansas at the time of her death. Administration of the Kansas estate was begun in the Wichita County Probate Court, with a Kansas resident as administrator c. t. a. Subsequently the Kansas administrator resigned and Owens was appointed administrator d. b. n. and executor by the Wichita County Probate Court. The Kansas administration was completed and Owens discharged as executor on March 1, 1963.

In excess of $100,000 was distributed to the trustee under the will. On October 26, 1963, the administration of the Iowa estate was completed and Owens discharged as executor upon a finding that all claims against the estate had been settled and paid.

In 1964, an account of Mrs. Saville in the Citizens Bank of Grant City, Missouri, with a balance of $13,146.04, was discovered. This account had not been administered in the Iowa Probate Court. Administration was begun in the Worth County Probate Court. Owens filed a claim for $18,000 for personal services rendered to the decedent between January, 1954, and October 19, 1960. At the trial, the administrator moved for a directed verdict on the grounds that the claimant’s evidence showed that he administered the estate of the decedent in Iowa, that claimant was a resident of Iowa and filed no claim against the estate there and therefore his claim was barred. The trial court overruled the motion and the jury’s verdict was in favor of the claimant for $18,000.00. After his motion for new trial had been overruled, the administrator appealed.

On this appeal, the administrator asserts that Owens’s claim was barred under the circumstances here presented by reason of his failure to file his claim in the Iowa probate proceedings. The appellant’s theory is that, as a resident of Iowa, Owens’s claim in the Missouri administration depends upon the Iowa six-months’ nonclaim statute (§ 635.68 Iowa Code). Since the claim would have been barred in Iowa when filed in Misr souri, appellant contends that it was barred in the Missouri administration.

According to an annotation in 72 A.L.R. 1030, “several cases have discussed the question of whether a failure to present a claim against the domiciliary administration within the required time is a bar to its presentation against the ancillary administration. The conclusions reached in those cases have not been in accord.” 1. c. 1031. Among the cases holding that the claim is not barred in the ancillary administration are Lipperd v. Lipperd’s Estate, 181 Mo.App. 106, 163 S.W. 934; Buckingham Hotel Company v. Kimberly, 138 Miss. 445, 103 So. 213; Wilson v. Hartford Fire Ins. Co., 164 F. 817, 90 C.C.A. 593, 19 L.R.A.,N.S., 553; Toner v. Conqueror Trust Co., 131 Kan. 651, 293 P. 745, 72 A.L.R. 1018. See also Hagan v. Lantry, 338 Mo. 161, 89 S.W.2d 522, 527-528 [3]; Borer v. Chapman, 119 U.S. 587, 7 S.Ct. 342, 30 L.Ed. 532.

This position is adopted in § 498 of the Restatement of Conflict of Laws, p. 604. The rule there stated is: “The time within which a claim can be proved in a state is fixed by the law of that state.” Comment a is as follows:

“Failure to prove a claim in one state within the time there limited is immaterial to the proof of the claim in another state. Thus, a claim barred by the statute of limitations at the domicil of the decedent or elsewhere is not, because of this fact, barred in the local court in which ancillary administration proceedings are being conducted. If it is within the time allowed by the local law, it will be permitted. Conversely, although a claim is within the domiciliary limitation, it cannot be proved in ancillary administration if the time for filing there has elapsed.”

Holding to the contrary are Durston v. Pollock, 91 Iowa 668, 60 N.W. 221; Harrison v. Stacy, 6 Robinson (La.) 15; Hunt v. Fay, 7 Vt. 170; Sanborn v. Perry, 86 Wis. 361, 56 N.W. 337; In re Smathers’ Will, 153 Misc. 132, 274 N.Y.S. 717, 737-739 [31, 32].

Our statutes on estates of nonresidents, enacted in 1957, definitely fix the independent nature of the proceedings in this state. § 473.668, RSMÓ 1959, V.A.M.S., provides:

“Administration proceedings and other procedures in this state with respect to property, tangible or intangible, of a nonresident decedent which is within the jurisdiction of this state are original proceedings or procedures conducted under the authority of this state solely, and are independent of and not ancillary to proceedings or procedures in any other state or country, and shall be had and conducted in this state as if the decedent were a resident, subject to and supplemented by the provisions in sections 473.671 to 473.694.”

§ 473.675 provides in part:

“The law of this state respecting proceedings, procedures and substantive rights relating in any way to the property in this state of a nonresident decedent and its disposition, including by way of illustration, but not limited to, all matters relating to (i) the commencement and conduct of an administration, (ii) distributions during or at the conclusion of an administration, (iii) any trust created under the will of a nonresident decedent, shall apply as if the decedent had been a resident of this state, subject to the following: * * [None of the exceptions are here pertinent.]

The time for presentation of claims is certainly a matter “relating to * * * conduct of an administration * * We would be obliged to ignore the express legislative declaration that the “law of this state * * * shall apply * * * ” if we look to the law of Iowa to determine whether the respondent’s claim is to be barred by non-presentation there. In Buckingham Hotel Company v. Kimberly, supra, the Mississippi Supreme Court concluded that the independent nature of the administration there required a negative answer to the question posed in that case: “If a claim against the estate of a deceased testator be barred in the state of Missouri, the domicile, because it was not presented for allowance within the statutory time fixed by the probate laws of that state, and judgment is entered there accordingly, will the bar of the state of decedent’s domicile preclude that creditor from having an administration of the estate here in this state and presenting his claim for probate?” 103 So. 214.

Appellant, citing a note in 41 Iowa Law Rev., 271, 273, suggests that the correct answer to the question here is determined by the residence of the claimant. According to appellant, “all decisions available seem to suggest that when a claimant is also a resident of the domiciliary jurisdiction, the ancillary court will look to the non-claim act of the domiciliary state as the law to be applied.” There is such a suggestion in Lipperd v. Lipperd’s Estate, supra. In that case, the court stated (163 S.W. 938):

“It is argued that the account is barred by the statute of limitations of the state of Iowa, requiring demands against an estate to be filed within one year after publication of notice of the granting of letters of administration. The application of the Iowa statute depends upon the fact of residence of the plaintiff, and there is evidence that she had been a resident of Missouri ever since 1908 and was so at the time of this trial.”

At the time of the Lipperd decision (1914), we had no statutory provision relating to nonresident estates such as now found in § 473.675, supra. Consequently, the court had some freedom in the choice of applicable law and chose to rely upon residence of the claimant as the basis for the choice. Now, however, the legislature has seen fit to prescribe the Missouri law as the generally applicable law. It has also seen fit to prescribe certain exceptions to the general applicability of Missouri law, but none of the exceptions apply to the problem here presented.

In cases from other jurisdictions, where the bar of the domiciliary statute was held applicable, the claimant was a resident of the domiciliary state. However, that does not appear to have been the determining factor. Thus, in Durston v. Pollock, supra, the claimant in the Iowa ancillary proceedings who was denied his claim because of the Illinois nonclaim statute was a resident of Illinois. However, the decision basically rests upon equitable considerations unfavorable to the allowance of the claim in Iowa. In Hunt v. Fay, supra, nonresident claimants were held barred from presenting claims in Vermont ancillary proceedings. In Harrison v. Stacy, the court stated that the bar of the nonclaim statute in the domiciliary proceedings should be given effect “upon a well settled principle of international jurisprudence.”

In our opinion, application of different rules to residents of Missouri and to residents of the domiciliary jurisdiction is not supported in principle and it certainly finds no basis in the statutory enactment which we must apply.

Appellant makes the further suggestion that our general “borrowing” statute, § 516.-190 RSMo 1959, V.A.M.S., makes the Iowa statute the governing law on the timeliness of Owens’s claim. In Lipperd, supra, the court rejected the borrowing statute as inapplicable in the situation there presented. We have discovered one case in which a borrowing statute was applied to probate claims. In re Smathers’ Will, 153 Misc. 132, 274 N.Y.S. 717, the New York borrowing statute was said to cause to be applied in administration proceedings in that state the California nonclaim statute, which, according to the court, California courts had treated as a “general statute of limitations.”

In our opinion, our borrowing statute was intended to apply to generally recognized statutes of limitation. Although some courts, such as California (see Morrow v. Barker, 119 Cal. 65, 66, 51 P. 12, 13), do refer to the nonclaim statute as “statute of limitation,” nonclaim statutes are more frequently considered not as statutes of limitations, but as enactments for facilitating the early settlement of estates. Sanders v. Merchants’ State Bank of Centralia, 349 Ill. 547, 566, 182 N.E. 897; In re Peterson’s Estate, 75 Wyo. 416, 296 P.2d 504; In re Lathers’ Estate, 215 Wis. 151, 251 N.W. 466, 467-468 [1,2], 254 N.W. 550; Johnson v. Larson, 56 N.D. 207, 216 N.W. 895, 897 [3], We agree with the conclusion in Lipperd that our borrowing statute was not intended to cause the nonclaim statute of the state in which a claim arose to become the applicable Missouri law upon presentation of such claim in Missouri probate proceedings.

Appellant also urges that Owens is estopped to assert his claim in the Missouri proceedings. This position is based upon the fact that Owens as executor published in the Iowa proceedings a notice to creditors, calling upon all creditors of the estate to make their claims, yet he failed to assert his claim in those proceedings. Appellant also points to the failure to assert a claim in the Kansas administration conducted by Owens. Appellant asserts that, by reason of the termination of both the Iowa and Kansas administrations without any known claims outstanding, the trustee to whom the estate was finally distributed had the right to assume that all claims against the estate had been paid.

A fundamental element of the doctrine of estoppel is action or inaction by the party seeking to raise an estoppel, to his detriment, in reliance upon the conduct or representation relied upon as the basis of estoppel. Emery v. Brown Shoe Co., Mo. Sup., 287 S.W.2d 761, 767 [5-7]; Klaar v. Lemperis, Mo.Sup., 303 S.W.2d 55, 59 [9,10]; Commerce Trust Co. v. Weed, Mo. Sup., 318 S.W.2d 289, 303 [10, 11].

In this case, appellant points to no action which the trustee took in reliance upon the failure of Owens to assert his claim prior to discovery of the Missouri assets. Appellant points to no action which the trustee might have taken, except for its reliance upon Owens’s failure to assert a claim in the prior proceedings. The only thing relied upon is that the trustee, rather than Owens, would receive the Missouri assets were Owens’s claim disallowed. Any such loss to the trustee is in no manner related to Owens’s failure to assert his claim earlier. We find no basis for estoppel.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Earl GRIFFITH, Appellant, v. Rafael SAAVEDRA and William Schinderle, Respondents.
    No. 51936.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellant.
    James A. Cole, Jenny, Cole & Davis, Union, for respondent, Saavedra.
   HOUSER, Commissioner.

Earl Griffith sued two defendants for $50,000 damages alleged to have been sustained as a result of an automobile collision. There was a defendants’ verdict. Plaintiff has appealed.

The sole question on appeal is whether the court erred in giving Instruction No. 11 offered on behalf of the defendant Saave-dra. No. 11 was given as a converse to Instruction No. 6, offered on behalf of plaintiff. Both are reproduced for purposes of comparison:

Instruction No. 6
“Your verdict must be for plaintiff and against the defendant Saavedra if you believe':
“First, plaintiff was in a position of immediate danger of being injured and was injured, and
“Second, defendant knew or by using the highest degree of care could have known of such position of immediate danger, and
“Third, at the moment when defendant first knew or could have known of such position of immediate danger, defendant still had enough time so that by using the means available to him and with reasonable safety to himself and all others and by using the highest degree of care he could have avoided injury to the plaintiff by slackening his speed and swerving to his left, and
“Fourth, defendant negligently failed to so slacken his speed and swerve to his left, and
“Fifth, such negligence directly combined with the acts of defendant Schinderle to cause injury to plaintiff. MAI NO. 17.14 (Plaintiff)”
Instruction No. 11
“Your finding must be for defendant Saavedra on plaintiff’s claim for damages under Instruction No. 6 unless you,believe:
“First, defendant Saavedra knew, or by using the highest degree of care could have known, of plaintiff’s position of immediate danger, and,
“Second, at the moment when defendant Saavedra first knew, or by using the highest degree of care could have known, of plaintiff’s position of immediate danger, defendant Saavedra then had enough time by using such care to have avoided injury to plaintiff by slackening the speed and swerving to the left, and
“Third, defendant Saavedra had the means available to him to have avoided injury to plaintiff by slackening the speed and swerving to the left, and
“Fourth, defendant Saavedra by using the highest degree of care could have avoided injury to plaintiff by slackening the speed and swerving to the left without either endangering himself or others, and
“Fifth, plaintiff sustained damage as a direct result of defendant Saavedra’s conduct. MAI 29.06 (6) Modified (Defendant Saavedra).”

Plaintiff contends that the finding required in paragraph fifth of Instruction No. 11 misled the jury into believing that before plaintiff could recover the jury must have believed that Saavedra’s conduct was the sole and only cause of plaintiff’s injuries; that lay minds would almost inevitably understand that by the phrase “a direct result” the court meant that Saavedra’s conduct must have been the sole proximate cause of plaintiff’s injuries, and that the language used in paragraph fifth is not applicable in submitting a case against two defendants on a theory of combined and concurring negligence. Citing cases holding that the negligence of one of two codefendants need not be the sole proximate cause of plaintiff’s injuries to make the one liable therefor; that the one may be liable if guilty of negligence contributing or concurring with that of another to produce the injury, and that to say that an injury is the direct result of certain negligent acts is to say that the acts were the proximate cause of the injury, plaintiff contends that Instruction No. 11 incorrectly states the law and was prejudicially erroneous.

We find no fault with Instruction No. 11. Its author followed MAI No. 29.06 (6), as modified to meet the requirements of the text of MAI at page 247 and to comply with the example (Instruction No. 7) on page 277. As thus modified Instruction No. 11 is sufficient under the circumstances of this case. Under Civil Rule 70.01, V.A. M.R. he was required to conform to MAI. If he had deviated from MAI to the prejudice of plaintiff, he would have violated the rule and committed error. The forms of instructions contained in MAI must be utilized when applicable and unnecessary deviations will not be permitted. Motsinger v. Queen City Casket Co., Mo.Sup., 408 S.W.2d 857 (decided December 12, 1966).

Instruction No. 11 is not misleading. It refers to and must be read in connection with Instruction No. 6. Read together they state the law and do not violate the holdings of the cases cited by plaintiff. Reading them together the jury was told that plaintiff could recover if he sustained damage as a direct result of defendant Saavedra’s negligence in combination with the acts of the defendant Schinderle; that is, that plaintiff could recover against Saavedra if the latter’s negligence was a proximate cause, and was not told that Saavedra’s negligence must be the sole proximate cause. In a comparable situation this Court said “The instructions, when read together, were proper and could not have been misunderstood by the jury.” Applebee v. Ross, Mo.Sup., 48 S.W.2d 900, 902 [4], 82 A.L.R. 288.

Nor does the phraseology “on plaintiff’s claim for damages” appearing in the introductory paragraph authorize a verdict on both primary and humanitarian negligence, in violation of the rule in Sauer v. Winkler, Mo.Sup., 263 S.W.2d 370, as contended by plaintiff. Again, this very language is prescribed by MAI, page 277, in the example (Instruction No. 7). The words “under Instruction No. 6” immediately following the words “on plaintiff’s claim for damages” are required by MAI at page 249, wherein the bar is advised that “If plaintiff submits on both primary and humanitarian negligence [as plaintiff did in this case], the above converse instructions would be modified by adding the words ‘under instruction (here insert the number of the instruction being conversed).’ These words should be added after the word ‘damages’ or if that bracketed clause is not used the words should be added after the first ‘defendant.’ ” The same admonition appears at page 253.

Accordingly, the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HENLEY, Judge.

text:
    Sylvester COLE, Respondent, v. M. E. MORRIS, Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Appellant.
    No. 51832.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.
    Max M. Librach, St. Louis, for respondent.
    Norman H. Anderson, Atty. Gen., Jefferson City, Irving L. Cooper, Special Asst. Atty. Gen., Clayton, for appellant.
   HENLEY, Judge.

This is an appeal by the Treasurer of the State of Missouri, custodian of the Second Injury Fund, from a judgment of the circuit court of the City of St. Louis sustaining an award of The Industrial Commission of Missouri.

This court has jurisdiction for the reason that a state officer as such is a party. Article V, § 3, Constitution of Missouri, V.A.M.S.; Stewart v. Johnson, Mo., 398 S.W.2d 850 [1]; Grant v. Neal, Mo., 381 S.W.2d 838 [3].

Respondent was employed by the General Tire Company as a truck driver. On the morning of January 6, 1961, while making a service call in his employer’s behalf, he was involved in a collision between his employer’s truck being operated by him and a truck of Armour Packing Company. As a result of the collision he sustained an injury to his back. His claim for workmen’s compensation against his employer and its insurer was compromised and settled, leaving pending his claim against the Second Injury Fund; consequently, we are concerned only with his claim against the Fund. While the claim was pending before the Referee, respondent settled his separate action for damages against the third party tort-feasor, Armour Packing Company, for $18,600. His total expense in recovering that sum from Armour was $6,341.50, leaving a net recovery of $12,258.50.

As a part of its final award to respondent on his claim against the Fund, the Commission made additional findings of fact and conclusions of law: (1) that as a direct result of the accident respondent sustained a 40% permanent partial disability of the body as a whole; (2) that prior to the accident respondent had an existing permanent partial disability equal to 30% of the body as a whole; and (3) that the previous disability and the disability from the last injury combined resulted in permanent total disability. The final award was that appellant pay respondent 140 weeks of compensation at the rate of $40 per week beginning February 4, 1964, and thereafter a pension of $27.50 per week for life.

Appellant contended before the Commission that the Second Injury Fund was entitled to be subrogated to the rights of respondent against the third party toft-feasor and credit on the award against the Fund of the amount respondent recovered from the third party. This contention, denied by the Commission and the denial sustained by the circuit court, constitutes appellant’s first point relied on as error.

This precise question has not been ruled by an appellate court of this state. The authorities cited by appellant and respondent are, for the most part, far afield of and shed little light on the question for decision; the briefs are of little or no help to us. The decisions we find in other jurisdictions are not in agreement; however the weight of authority and the better reasoned opinions lead toward a conclusion that the Fund is entitled to subrogation.

Respondent contends that the Fund is not entitled to credit on the award against it, because the statutes (§§ 287.150 and 287.220 RSMo 1959, V.A.M.S.) do not give the Fund the right of subrogation; that § 287.-220, providing for payments from the Fund, and other sections in chapter 287, creating the Fund, do not authorize credit to the Fund of any amount recovered by an employee from a third party tort-feasor. There is no specific mention of a right of subrogation to the Fund in those sections. Nor does § 287.150, providing for subro-gation of the employer to the rights of the employee against third party tort-feasors, authorize subrogation of the Fund to rights of the employee against third parties except for rehabilitation benefits paid the employee pursuant to subsection 3 of § 287.-141.

If we are confined to the subrogation section of the statutes (§ 287.150) for authority for crediting the Fund with the amount recovered by respondent from the third party, then obviously the Fund is not entitled to the credit claimed by appellant. But, are we confined to the statute? We think not.

“Subrogation is founded on principles of justice and equity, and its operation is governed by principles of equity. It rests on the principle that substantial justice should be attained regardless of form, that is, its basis is the doing of complete, essential, and perfect justice between all the parties without regard to form.” 83 C.J.S. Subrogation pp. 579-580, § 2 a. It is “ * * * closely akin .to, if not a part of, the equitable principle of ‘restitution’ and ‘unjust enrichment.’ It is in the nature of a constructive trust, of equitable origin, to serve best the justice of the situation * * 83 C.J.S. p. 581, § 2 b. It has been said that “ * * * the right of subro-gation * * * is a device adopted or invented by equity to compel the ultimate discharge of a debt or obligation by the one who in fairness and good conscience ought to pay it. Though the doctrine is equitable in its origin, the right acquired is generally referred to as legal subrogation; * * * ” McKenzie v. Missouri Stables, Inc., 225 Mo.App. 64, 34 S.W.2d 136, 138 [2]. “Legal subrogation has its rise in equity, and arises out of a condition or relationship by operation of law. So it has been held that legal subrogation arises by operation of law where a person having a liability * * * in the premises pays a debt due by another under such circumstances that he is in equity entitled to the security or obligation held by the creditors whom he has paid.” 83 C.J.S. Subrogation pp. 583, 584, § 3 a.

As a general rule, any person who, pursuant to a legal obligation to do so, has paid for an injury resulting from the wrong of another may be subrogated to the rights of the injured person against the wrongdoer. Before the effective date of The Workmen’s Compensation Law this court recognized and applied the above rule in an action by an employer to recover from a third party for amount employer paid its injured employee as damages on account of negligence of the third party. Busch & Latta Painting Co. v. Woermann Const. Co., 310 Mo. 419, 276 S.W. 614, 619 [7, 8], and cases there cited.

In Geneva Construction Company v. Martin Transfer and Storage Company, 4 Ill.2d 273, 122 N.E.2d 540, the Supreme Court of Illinois held that where the statutory provision for subrogation of the employer to rights of the employee against third parties had been declared unconstitutional, the employer was entitled to recover compensation paid his injured employee under the doctrine of common law subrogation. In Fidelity & Casualty Co. of New York v. St. Paul Gas Light Co., 152 Minn. 197, 188 N.W. 265, the Supreme Court of Minnesota held that provisions in its compensation act for sub-rogation were “ * * * merely declaratory of the common-law rule of subrogation, available * * * without act of the Legislature.” In Hardware Mutual Casualty Co. v. Butler et al., 116 Mont. 73, 148 P.2d 563, 568 [6], the Supreme Court of Montana held: “Independent of any provision of the Workmen’s Compensation Act, the employer or the insurance carrier paying compensation would have the right to be subrogated to the claim of the injured workman as against a third party whose negligence was responsible for the injuries sustained by the workman.”

Other than provide two methods of apportionment of a recovery from a third party tort-feasor between the employer and employee, the legislature, in enacting § 287.-150, did no more than declare the law, that is, a right of subrogation, as it existed before enactment of The Workmen’s Compensation Law; no new right was created.

The employer’s right of subrogation to tort claims in favor of his injured employee against third persons, as it existed before enactment of The Workmen’s Compensation Law, and as it exists- today, is based on the employer’s legal obligation to pay compensation for the injury. On the"' same basis, there is no logical reason why another, under the same obligation to pay compensation for injury caused by the negligence of a third party, should not be accorded the same right. The right of sub-rogation existed in such persons under the common law before enactment of what is now chapter 287, RSMo 1959, V.A.M.S., and exists today without enactment of statutory authority. The essential elements of the common law right of subrogation are present and involved, and should be applied.

The Second Injury Fund has been required to pay compensation under the terms of the statute to an employee injured by a third party tort-feasor and that loss should fall ultimately upon the wrongdoer responsible for it. If the Fund is deprived of the right of subrogation, it would result in the unjust enrichment of the employee, who could retain both compensation and damages, thereby violating a basic tenet of the common law that there may not be a double satisfaction for the same wrong.

We hold that the Second Injury Fund is subrogated to the rights of the employee and entitled to credit on the award of a portion of the recovery by the employee from the third party. Having so held, the onlj question remaining on this point is what portion of the recovery shall be paid and credited to the Fund.

We hold that the amount of the recovery remaining, after payment of respondent’s expenses of making the recovery, shall be paid, retained and credited as follows: the respondent shall forthwith pay or reimburse the Fund for all compensation paid him by the Fund; the balance shall be retained by respondent and be treated as an advance payment by the Fund on account of any future installments of compensation.

Appellant’s second numbered point relied on is : “There was not sufficient evidence to warrant the award against the * * * Fund, because the evidence clearly showed that the last injury alone caused Respondent to be permanently and totally disabled, and that there was no causal connection between Respondent’s pre-existing injuries and the injuries of January 6, 1961. To permit Respondent to recover against the Second Injury Fund would permit him to receive an unjust enrichment.” Actually, there are three parts to this second and last point: (1) insufficient evidence to support the award, (2) no causal connection between the preexisting and last injury, and (3) un just enrichment. The point and its parts are not supported by the citation of authority. Part (2) is not mentioned in the argument; part (3) is mentioned but not developed in the argument. By failing to cite authorities and develop these two parts of the point in his argument appellant has abandoned them. They will not be further noticed. Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564, 565 [1]; Wattson v. James B. Welsh Realty & Loan Co., Mo.App., 266 S.W.2d 35, 37 [2]; Kratzer v. King, Mo., 401 S.W.2d 405, 408 [5].

Part (1) of the point is frugally developed in argument. The question of whether there was “ * * * sufficient evidence to warrant the award * * * ” resolves itself into which of two conflicting medical opinions regarding the cause of respondent’s permanent total disability should be accepted. Both Dr. Funsch, who testified on behalf of respondent, and Dr. Diehr, who testified on behalf of appellant, concluded that respondent was permanently and totally disabled. Dr. Funsch testified that the permanent total disability was the result of a combination of a preexisting injury and disability and the last injury. Dr. Diehr testified that the permanent total disability was the result of the last injury alone. As indicated, the Commission accepted the opinion of Dr. Funsch on this issue. Such issue is peculiarly for the determination of the Commission, Vollmar v. Board of Jewish Education, Mo., 287 S.W.2d 868, 872 [4]; and the award may not be said to be without substantial evidence to support it. Williams v. International Shoe Co., Mo.App., 213 S.W.2d 657, 662 [6]. This part of appellant’s second point relied on is without merit.

The judgment is reversed and the cause remanded to the circuit court with directions that that court return the cause to the Commission for entry of its order in accordance with this opinion.

All concur.


author: EAGER, Judge.

text:
    STATE of Missouri ex rel. KNIGHT OIL COMPANY, a Corporation, Relator, v. Honorable Paul E. VARDEMAN, Judge of the Circuit Court of Jackson County, Respondent.
    No. 51950.
    Supreme Court of Missouri. In Banc.
    Dec. 30, 1966.

      Oscar S. Brewer, Kent E. Whittaker, Kansas City, for relator.
    Brewer & Myers, Kansas City, and Dar-rah, Mellor & Sparks, Wichita, Kan., of counsel.
    Samuel J. Molby, James F. Duncan, Kansas City, for respondent.
    Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
   EAGER, Judge.

This is an original proceeding in mandamus filed in this court. The matter was instituted by the filing of a petition in prohibition, but we granted leave to amend. Thereafter our alternative writ in mandamus was issued. From the petition, the return, the reply, and the exhibits thereto, the facts and occurrences appear as we shall now relate them.

On June 19, 1963, relator filed suit in Jackson County against Merchants-Produce Bank of Kansas City, Missouri, alleging that on October 4, 1961, plaintiff was the owner of a check payable to it in the amount of $205,709, drawn by Associates Discount Corporation on the First Bank and Trust Company of South Bend, South Bend, Indiana, and certified by that Bank; that the said check was presented to defendant by one Charles I. Hayes, purporting to act as plaintiff’s President, and that defendant wrongfully paid the proceeds to a corporation owned or controlled by Hayes upon his unauthorized endorsement; that plaintiff was thus deprived of the proceeds, that it was and is the owner of the check, and that the check was thus converted by the defendant. Plaintiff prayed judgment for the full amount of the check, with interest.

Defendant filed answer, denying all the substantive allegations of the petition. More than two years later and on November 29, 1965, defendant filed its “Motion to Dismiss or Require Joinder of Additional Party Plaintiff” wherein it alleged (after reciting certain allegations of the petition): that on November 1, 1962, plaintiff and Associates Discount Corporation entered into a “joint adventure agreement” wherein they agreed to share equally any sum recovered from the defendant by judgment or settlement in any suit on the check in question and agreed to share equally the total cost and expense of any action so filed; that “as the result of said agreement plaintiff and Associates Discount Corporation had a joint interest” in the action, and that there was accordingly a nonjoinder requiring joinder or dismissal; further, that a complete determination of the controversy could not be had without the presence of Associates. An order was prayed accordingly.

The agreement so referred to stated in essence that Knight Oil Company (plaintiff below and relator here) was “alleged” to be indebted to Associates in the sum of $164,-275.10, on promissory notes secured by accounts receivable; that in compromise and settlement it was agreed: that plaintiff would pay Associates $72,000, at stated times within sixty days; that Associates would cancel all such notes and withdraw its assignment; that plaintiff would, if necessary, prosecute a suit against Merchants-Produce Bank to recover the amount of the check already described; that plaintiff and Associates would share equally in the proceeds of any recovery by judgment or settlement, and that the cost and expenses should be borne equally; that the attorneys would be selected by plaintiff on contingent fees of not to exceed 33½%, the precise percentage to be determined by the difficulties encountered and the necessity of local counsel.

The trial court, after the submission of written suggestions pro and con, entered its order on January 6, 1966, sustaining the motion to require the joinder of the additional party and allowing plaintiff fifteen days in which to file an amended petition joining Associates as a plaintiff or a defendant; the motion to dismiss was overruled conditionally. In the present proceeding relator seeks our writ requiring respondent to vacate that order, insisting that it has the right to prosecute its action alone, that the cause of action was not assigned, that there is no “joint interest,” and that the presence of Associates is not necessary to a complete determination of the controversy. The return of respondent to our alternative writ admits the authenticity of the exhibits, but denies that relator has fully stated the allegations and provisions of its original petition and of the agreement; it denies relator’s right to prosecute its action alone, alleges that respondent had jurisdiction of the subject matter and of the person of Associates, that relator and Associates were parties to a “joint adventure agreement” with a common interest, a mutual right of control, and an agreement to share the recovery and the expenses, thus resulting in a nonjoinder. The return further alleges that Associates issued the check in question knowing that Hayes intended to use the proceeds to purchase the controlling stock of relator, that Associates made the transaction possible, and that it would be unconscionable to let Associates “recover more than $100,000 from defendant * * * ” without having it made a party to the action; also, that relator would not be prejudiced by the joinder, and that a complete determination of the controversy could not be had without such joinder.

The reply denies that the agreement had the legal effect claimed by respondent and denies the new matter affirmatively alleged in the return, except that relator admits that Associates issued the check knowing that Hayes intended to use the proceeds “to purchase the capital stock of Relator.”

Although matters which we consider extraneous and irrelevant have thus been introduced into the pleadings, there are sufficient facts shown without controversy to permit a determination of the validity of respondent’s order on the motion, which is the only question involved here. We shall disregard those matters, both in pleadings and briefs, which we deem irrelevant to the basic issues. There is no doubt that respondent had jurisdiction of the subject matter generally, and of the persons of the original parties; also, that it could obtain personal jurisdiction of Associates, if the situation justified it. But extraordinary writs are issued when necessary to prevent an excess of jurisdiction, as well as to prevent or stop action where no jurisdiction exists. State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73; State ex rel. McCarter v. Craig, Mo., 328 S.W.2d 589. Counsel for respondent say that while they have found cases in which mandamus was employed to require a lower court to join a party they have found none where the writ was used to prevent the joining of a party. If, in fact, the court has exceeded its lawful jurisdiction in ruling on a matter of joinder, there is no reason why the writ should not be used in either situation. Relator cites several cases where a trial court was required by mandamus to permit intervention by one who had the absolute right to intervene under the statute. We agree with respondent that these cases are not specifically in point here.

Rule 52.04 provides (a), V.A.M.R. that persons having a joint interest shall be made parties, and (b) that, when a complete determination of the controversy cannot be had without the presence of other parties, the court may order them brought in. This Rule replaced § 507.030, RSMo 1949, V.A. M.S., which was identical. The trial court did not indicate whether it acted under part (a) or part (b) of the Rule; we must consider both.

It appears from the reply brief that the Bank, on October 3, 1966, filed in the original suit, after the issues were made up in our proceedings, its third-party petition against Associates and also its amended answer and counterclaim, in all of which sundry issues were raised. We shall take no further note of those proceedings, for they do not constitute any part of our record or issues here.

Counsel for respondent say that relator “makes no claim that respondent over-stepped his discretion in ordering the joinder of Associates.” Relator does claim that the order of joinder was unlawful, as not made within the provisions of our rule, and thus, broadly construed, it would seem to claim that respondent exceeded the limits of such discretion as existed. However, the point is immaterial for, having issued our alternative writ and assumed jurisdiction, we would proceed on our own moton, if necessary, to determine whether respondent exceeded his jurisdiction, including the exercise of any abuse of discretion. The trial court does have a discretion in the first instance to determine, under the rule, whether the party sought to be joined is a necessary party; if it has a joint interest, it must be joined; if its presence is necessary to a complete determination of the controversy, it may be brought in under subdivision (b). The first essential under (b) is a determination that it is a necessary party. If, as a matter of law, it is not, then the court abused its discretion when it ordered the joinder.

We consider, first, whether Associates had a "joint interest" in the cause of action sued upon. Respondent bases his contention solely upon the agreement between plaintiff and Associates, made more than a year after the Bank paid the check. We first note the precise nature of plaintiff’s suit. It was one for a conversion of the check by the defendant Bank, which had paid it to Hayes allegedly upon an unauthorized signature, plaintiff alleging further that it was at all times the owner of the check and entitled to the proceeds. Defendant answered merely by admissions and denials; the issues, therefore, were relatively simple. The Bank’s motion for joinder, aside from formal recitations of the pleadings and the substance of our rule, stated as the sole ground for requiring a joinder, that plaintiff and Associates had entered into a joint venture by virtue of their agreement. That is now the first insistence of respondent in his brief.

A “joint adventure” has been defined many times in our cases. Thus, in Shafer v. Southwestern Bell Telephone Co., Mo., 295 S.W.2d 109, the court said, at loc. cit. 116: “A ‘joint adventure,’ as a legal concept, is of comparative recent origin, Neville v. D’Oench, 327 Mo. 34, 34 S.W.2d 491, 503, and is founded entirely on contract, either express or implied. It can exist only by voluntary agreement of the parties to it. It has been defined as an ‘association of persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge.’ 48 C.J.S. Joint Adventures, § la. It is in the nature of a partnership, generally governed by the same rules of law, the principal difference being that a joint adventure is usually limited to a single transaction. As a general rule, in order to constitute a joint adventure, there must be a community of interest in the accomplishment of a common purpose, a mutual right of control, a right to share in the profits and a duty to share in the losses as may be sustained.” See also, Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562; Gales v. Weldon, Mo., 282 S.W.2d 522; Fish v. Fish, Mo.App., 307 S.W.2d 46; Holt v. Queen City Loan & Investment, Inc., Mo., 377 S.W.2d 393. We do not construe this agreement as creating a joint adventure. In the first place, it merely gave to Associates a contingent interest in one-half of the proceeds of plaintiff’s anticipated suit, subject to one-half of the cost and expenses, in part payment of plaintiff’s debt to it; it did not, as we construe it, give to Associates the right to control or share in the control of the litigation or to dictate a settlement; the limitation on the percentage of attorneys’ fees did not constitute such a right of control; and the mere participation in the contingent proceeds of a suit is not, in our view, an “association” to carry out a “business enterprise for profit.” The cases supporting the existence of a joint adventure concern the purchase or sale, operation, or construction of specific property or the operation of a business. We have found none which holds one to be a joint adventurer merely because he is to share in the proceeds of a suit, as part payment for a pre-existing debt. There was no joint adventure here, and we hold that there was no joint interest requiring a mandatory joinder. The cases of Wittels v. Jack Dubinsky, Mo.App., 343 S.W.2d 644, Barnett v. Prudential Ins. Co. of America, 239 Mo.App. 670, 194 S.W.2d 317, and Windisch v. Farrow, Mo.App., 159 S.W.2d 392, cited by respondent, merely hold that there is a nonjoinder when all members of an admitted partnership are not made parties. Those cases have no applicability here.

It is not contended that relator did not have the right or capacity to sue the Bank. Section 507.010, RSMo 1959, V.A.M.S. It was and is certainly a real party in interest, and it was at least a trustee of an express trust for Associates, in so far as the latter had an interest in the proceeds of the suit. Relator insists that the agreement did not assign any part of the cause of action to Associates, but merely gave it a contingent interest in the net proceeds. In Keeley v. Indemnity Co. of America, 222 Mo.App. 439, 7 S.W.2d 434, two mortgaged trucks were insured by the defendant against loss by fire; both were so destroyed and the owner sued for the loss. He had previously assigned to the mortgagee all his right, title and interest in and to the proceeds of the policies. The defendant insisted that the instrument constituted a full assignment of the claim and that plaintiff could not maintain the suit. The court held to the contrary. It said in part, at loe. cit. 436-437: “That which was given the Harvester Company by the assignment — that is, the proceeds from the insurance policies — was not a legal interest in the proceeds, but an equitable interest therein, and while plaintiff need not have a beneficial interest in the cause of action so as to constitute him the real party in interest, yet he did retain a beneficial interest, * * * plaintiff had the legal title to the cause of action, and his agreement about the distribution of the proceeds does not change that. Whatever interest the Harvester Company had was equitable, for from the instrument itself it will be seen that plaintiff did not assign his cause of action against defendant, but merely assigned whatever proceeds may- ultimately be derived from the policies. In effect, it was an agreement with the Harvester Company that if he (plaintiff) should recover any money on his suit against defendant, he would pay same over to the Harvester Company to cover his debt to it. The proceeds were a matter of the future and something that might never come into being.” That case did not specifically involve a joinder, but the principle decided is applicable here. See also, generally, Denton v. Mitchell, Mo.App., 262 S.W.2d 639; Truitt v. National Life & Accident Ins. Co., 236 Mo.App. 1036, 161 S.W.2d 683. In Truitt, the proceeds of an insurance policy were assigned to an undertaker; the beneficiary sued; objection was made to his capacity to sue, and the court said, loe. cit. 686: “The assignment merely creates a beneficial interest in the assignee in the money in question, plaintiff retaining the legal title. It was not an assignment of the cause of action. Plaintiff, at all times, retained the policy and had it in his possession at the time suit was filed, and there is no claim on the part of the defendant that it paid anyone the $200 in question. Plaintiff is the real party in interest and entitled to maintain this suit.” We conclude that relator did not assign one-half of its cause of action to Associates, and that it was not a necessary party as a joint owner thereof.

We next consider whether the presence of Associates was essential to a “complete determination of the controversy.” We note, first, that “the controversy” means the suit between the relator and the Bank, not some other controversy between one of the parties and an outsider. While the intervention cases are not specifically in point, their definitions of an “interest” which compels intervention are persuasive. In State ex rel. State Farm Mutual Auto Ins. Co. v. Craig, Mo.App., 364 S.W.2d 343, 95 A.L.R.2d 1321, the court said, loc. cit. 346: “The petitioner for intervention must have an ‘interest’ in the subject matter of the action. Such interest does not include a mere, consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the inter-venor will either gain or lose by direct operation of the judgment to be rendered. State ex rel. Farmers Mutuals Auto Ins. Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318(4); Laclede Gas Co. v. Abrahamson, Mo., 296 S.W.2d 100, 61 A.L.R.2d 1286; see City of Hannibal v. Winchester, Mo.App., 360 S.W.2d 371, 375.”

Respondent seems to argue that Associates would have an independent cause of action on the check, and that it should be joined to foreclose such an action. It relied on no such ground in the motion for joinder, and the ruling on that motion is what we are reviewing here. It is doubtful, to say the least, whether Associates would have any such cause of action; it is not shown to have suffered any loss. Counsel cite no Missouri cases and the only one we have found, First National Bank of Kansas City v. Produce Exchange Bank, 338 Mo. 91, 89 S.W.2d 33, involved a cashier’s check on which the drawer was primarily liable and which it had paid, thereby suffering a loss. We do not decide the point, nor need we do so, since any independent right of action which Associates might possibly have against the Bank would be entirely separate and distinct from relator’s cause of action against it. Consequently, counsels’ argument that in a suit by Associates its own negligence would be a defense, is aside from the point. The record does not show that Associates has ever made any claim whatever on the Bank. Its interest in the proceeds of the check is fully represented by relator in the pending suit, all in strict accordance with § 507.010, discussed, supra.

Despite respondent’s protestations to the contrary, it would seem that the only legitimate purpose in seeking to join Associates would be to procure indemnity or contribution from it in case of liability, by cross-claim or otherwise. That purpose, where proper, may ordinarily be accomplished through our third-party procedure or by an independent suit; however, we are not required or permitted to rule on the availability of other remedies in the present circumstances. It is obvious that the joinder of Associates as a party in the present litigation would greatly broaden and confuse the original issues. We conclude that the presence of Associates was not necessary for a complete determination of the issues in the suit between relator and the Bank. For a recent discussion and definition of the term “necessary party,” see Shepherd v. Dept. of Revenue, Mo.App., 377 S.W.2d 525. Rule 52.04(b) clearly contemplates that a party to be brought in by order of the court shall be a necessary party.

We are further convinced that on the issues raised by the Bank’s motion for joinder the question was one of law, and that when the court ordered the joinder, it exceeded its lawful jurisdiction; to put the statement in another way, the question being one of law, the trial court had no discretion to do otherwise than to deny the motion, although, of course, it had jurisdiction to rule. Associates simply was not a necessary party to the ordinary, uncomplicated conversion suit by the owner of the check. Our alternative writ of mandamus will be made peremptory, directing respondent to vacate its order requiring the joinder of Associates Discount Corporation in relator’s action against Merchants-Produce Bank of Kansas City, and also to overrule, without condition, the motion of said Bank to dismiss the cause for alleged nonjoinder. It is so ordered.

All concur.

      . For an excellent discussion of the nature of such suits, generally, see Chemical Workers Basic Union, Local No. 1744 v. Arnold Savings Bank, Mo., 411 S.W.2d 159, decided on December 12, 1966.


author: DONNELLY, Judge. STORCKMAN, C. J.,

text:
    STATE ex rel. INTERSTATE MOTOR FREIGHT SYSTEM, INC., a Corporation, Relator, v. Honorable Harry A. HALL, Judge, Circuit Court of Jackson County, Respondent.
    No. 52170.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1966.

      M. D. Blackwell, William H. Sanders, Thomas I. Osborne, Kansas City, J. M. Neath, Jr., Warner Norcross & Judd, Grand Rapids, for relator, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel.
    Walter R. James, James, McFarland & Trimble, North Kansas City, Lane D. Bauer, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for respondent.
   DONNELLY, Judge.

This is an original action in prohibition. Relator, Interstate Motor Freight System, Inc., is a Michigan corporation. Respondent is Judge of Division 10 of the Circuit Court of Jackson County, Missouri.

On October 4, 1962, Interstate entered into an agreement with Eaton Truck Lines, Inc. for the sale by Eaton to Interstate of an Interstate Commerce Commission Certificate for the sum of $105,000, with the sale contingent upon authority from the Interstate Commerce Commission for Interstate to operate under said Certificate. Subsequent to execution of the agreement, various actions transpired before the Interstate Commerce Commission and in the Federal judicial system involving the authority of Interstate to operate under the Certificate. .

On August 7, 1964, a suit was filed in Jackson County Circuit Court by Francis M. Sharp, an Eaton shareholder, against Eaton, and others, expressing dissatisfaction with Eaton’s corporate management and seeking the appointment of a receiver. Interstate was not a party defendant in this proceeding. A receiver was appointed by Respondent. On April 8, 1965, and May 19, 1965, Respondent issued show-cause orders commanding Interstate to appear before him and show cause why the agreement of sale .between Eaton and Interstate should not be declared terminated. There is some question whether these orders had legal validity because of the methods used to attempt service of process on Interstate. However, we do not rule these issues here.

On June 29, 1965, the receiver, in behalf of Eaton, and with leave of court, filed a “third-party petition” praying in substance that the Respondent declare that Interstate has no further right to purchase the Certificate and for orders enforcing such declaration. This pleading is not of a type contemplated in S.Ct. Rule 52.10, V.A. M.R., and § 507.080, RSMo 1959, V.A.M.S. However, we will not concern ourselves so much with a mere name as with the essence of the matter. The “third-party petition” seeks a judicial declaration as to contract rights and obligations between Eaton and Interstate.

On July 23, 1965, Interstate filed a petition for removal of the “third-party action” to the Federal Court in Kansas City, Missouri, and filed its Answer there on July 27, 1965. On September 13, 1965, the cause was remanded to the Circuit Court of Jackson County, Missouri. On March 18, 1966, the receiver requested a trial setting on the issues raised in the “third-party petition.” On March 24, 1966, Interstate petitioned for change of judge in the “third-party action” on the grounds of bias and prejudice. On April 19, 1966, Interstate’s petition for change of judge was denied by Respondent and a show-cause order was issued ordering Interstate to appear and show cause why it should not be enjoined from proceeding further with any action concerning the Certificate. Interstate petitioned this Court and our preliminary rule in prohibition issued May 11, 1966. We determine whether our preliminary rule should be made absolute.

Respondent first contends that Interstate’s petition for change of judge was properly denied because the “third-party action” is not a “civil suit” within the contemplation of S.Ct. Rule 51.03, V.A.M.R. (See § 508.090, RSMo 1959, V.A.M.S.).

In Hayes v. Hayes, 363 Mo. 583, 588, 252 S.W.2d 323, 327, a “civil suit” was characterized as an independent proceeding “by which rights of private individuals are protected or enforced.” Whether or not Interstate is entitled to a change of judge is dependent upon whether the issues raised in the “third-party action” are normally part of the routine administration of the receivership or constitute separate triable issues which have the characteristics of a separate cause of action. Whatever it may be named, the “third-party action” was instituted by the receiver against Interstate to enforce a civil remedy, it is an adversary proceeding, and it contemplates a determination of substantial rights. It is a substitute for a separate suit. Dold Packing Co. v. Doermann (8 Cir), 293 F. 315. We are of the opinion it is an independent proceeding and is a “civil suit” within the contemplation of S.Ct. Rule 51.03, V.A.M.R.

Respondent next contends that Interstate’s petition for change of judge was properly denied because (1) the petition did not sufficiently allege when Interstate obtained knowledge of the alleged prejudice of Respondent; (2) Interstate failed to give notice of filing of the petition to parties other than the receiver; and (3) the petition was not timely filed, was not made in good faith, and was part of a studied pattern of delay.

In Douglass v. White, 134 Mo. 228, 233, 234, 34 S.W. 867, 868, it was stated: “While applications of this character in so far as the question as to whether their presentation is timely, or whether the notice of the intended filing of same is sufficient, or whether the application itself is sufficient as to substance and form, are addressed to the sound discretion of the court, when these questions are settled in the affirmative of the proposition, or when from the facts of the case they should have been so settled, the duty of the court in the premises is no longer discretionary, but imperative, and the change should go in favor of the litigant asking it as a matter of right, and not as a matter of favor or discretion.

“Nor is the right of the applicant made to depend upon the finding of the court upon the questions of facts stated in the application, or upon the private knowledge or information of the court of the existence or nonexistence of the facts therein stated, but must be determined by what is judicially presented in due course of law, and this the office of the application can alone perform. If the application is in substantial compliance with the requirements of the statutes, the change must be granted.”

The petition for change of judge was filed March 24, 1966. The petitioner alleged that knowledge of prejudice and bias was obtained within five days of filing of the petition. The affidavit annexed was subscribed and sworn to March 22, 1966. This constituted substantial compliance with S.Ct. Rule 51.06, V.A.M.R. (See §§ 508.120 and 508.130 RSMo 1959, V.A. M.S.).

The petitioner gave notice of its petition for change of judge to the receiver and his attorney. This was sufficient. We have held the “third-party action” was an independent proceeding involving Eaton, through its receiver, and Interstate. Petitioner was not required to serve notice on other parties to the receivership proceeding.

Respondent asserts the petition for change of judge was not timely and was not made in good faith because it was filed one and one-half years after the receivership proceedings were commenced and nine months after the making of certain remarks by an attorney for Interstate in a Federal Court proceeding indicating he was of the opinion that Respondent did not “particularly care what our rights are.” We have held the “third-party action” was an independent proceeding. On March 18, 1966, a trial setting on the “third-party action” was first requested. It then became evident that if Respondent is prejudiced and biased Interstate would be legally subjected to such prejudice and bias, imagined or otherwise. It is not essential that prejudice and bias be exhibited by an isolated statement made by a judge. Knowledge of the existence of prejudice and bias may come to a litigant as a result of an accumulation of information which finally convinces the litigant that he cannot have a fair and impartial trial before a particular judge and should disqualify him. On the record in this case, we are of the opinion that the petition for change of judge was timely and was made in good faith. The petition for change of judge should have been sustained.

We recognize that in State ex rel. Brady v. Evans, 184 Mo. 632, 83 S.W. 447, a contested election case, it was held that prohibition did not lie to prohibit the judge from proceeding in that case after his disqualification was sought. The basis for the decision was that appeal was an adequate remedy. However, where remedy by appeal is inadequate, as in this case, we will interfere by the remedy now asked. St. Louis, K. & S. R. Co. et al. v. Wear, 135 Mo. 230, 36 S.W. 357, 658, 33 L.R.A. 341.

We hold Interstate is entitled to a declaration of its rights, if any, to the Interstate Commerce Commission Certificate by a judge other than Respondent. It follows that the show-cause order of April 19, 1966, which attempts to ignore the “third-party action” and to summarily dispose of such declaration, cannot stand.

Respondent is directed to take no further action on the show-cause order or on receiver’s “third-party action” against Interstate inconsistent with the views expressed herein.

The preliminary rule in prohibition should be made absolute. It is so ordered.

HYDE, HOLMAN, HENLEY and FINCH, JJ., and WOLFE, Special Judge, concur.

STORCKMAN, C. J.,

concurs in result only on ground that relator was entitled to have its rights determined in a plenary action in another forum and not as an adjunct of the receivership, and, therefore, the respondent lacked jurisdiction to make the order to show cause.

EAGER, J., not sitting.


text:
    Eula ALBERS, Appellant (Plaintiff), v. Roberta L. GEHLERT and Milton Gehlert, Respondents (Defendants).
    No. 51697.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 30, 1966.

      A. Robert Belscher, St. Louis, Donald S. Hilleary, Clayton, for appellant.
    F. X. Cleary, Paul S. Brown, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondents (defendants).
   WELBORN, Commissioner.

Action for $35,000 damages for personal injuries sustained by plaintiff in fall on sidewalk at defendants’ residence. Plaintiff appeals from directed verdict in favor of defendants at close of plaintiff’s case.

Roberta L. Gehlert and Milton Gehlert, her husband, were owners and occupants of a residence at 122 Morningside Drive in Kirkwood. They had purchased a Frigidaire electric washing machine and were to receive a demonstration of its operation. Plaintiff Eula Albers performed such demonstrations by arrangement with the Frigidaire Sales Company. On January 24, 1962, Mrs. Albers telephoned Mrs. Gehlert and arranged to come to the Gehlert residence the next day and demonstrate the operation of the washing machine.

At about 9:00 A.M. on January 25, Mrs. Albers drove to the Gehlert residence and parked on the street in front of the house. Snow, which had fallen several days previously, covered the ground, but the Geh-lert’s driveway was free from snow. Mrs. Albers walked up the driveway to a side door of the Gehlert’s house. She received no response to her knock at that door so she took a walk leading from the driveway to the front door of the house. A few steps before she got to the front door, “all of a sudden it looked like the ice * * * was sprinkled over it like a finger out over the sidewalk.”

Mrs. Albers reached the front door and rang the doorbell. Mrs. Gehlert answered. After plaintiff had introduced herself, Mrs. Gehlert noticed that plaintiff’s car was parked in a fire lane. She suggested that plaintiff move her auto and told plaintiff that she could park in the driveway.

According to plaintiff, “I told her that there was ice on her walk near the steps and could I please come through and use the side door. She said, ‘when you come back in I will leave you in the side door;’ with that she closed the door. * * * So I turned and started back down the sidewalk which is only just a few steps to the ice and my heel caught on some of this ice and it seemed to be melting and running and I slipped all the way into the driveway. * * * Mrs. Gehlert ran out. * * * and said, ‘why didn’t I let you come through * * * I wish this had been me instead of you. * * The nature of plaintiff’s injury is not here significant.

On this appeal, plaintiff contends that the trial court should not have ordered a directed verdict for defendants “because the evidence most favorable to the plaintiff shows that the defendants were negligent in the act of closing the door and refusing plaintiff (a business invitee) a safe passage through the house at plaintiff’s request, because the defendants knew, or should have known that to so refuse the plaintiff would force her to encounter the danger of the icy front sidewalk and probably be injured.”

Plaintiff’s position is that Mrs. Gehlert’s refusal to permit plaintiff to go through the house was negligence as described in 2 Restatement of Torts, 2d, § 302(b), p. 82. That work states : “A negligent act * * * may be one which involves an unreasonable risk of harm to another through * * * (b) the foreseeable action of the other, a third person, an animal, or a force of nature.”

Defendants’ position is that, whether or not defendants’ conduct might have constituted negligence, there can be no liability because defendants owed no duty to plaintiff in the circumstances. In this connection, we note Comment a to § 302 of the Restatement, 2d, p. 82.

“This Section is concerned only with the negligent character of the actor’s conduct, and not with his duty to avoid the unreasonable risk. In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act. The duties of one who merely omits to act are more restricted, and in general are confined to situations where there is a special relation between ,the actor and the other which gives rise to the duty. * * * If the actor is under no duty to the other to act, his failure to do so may he negligent conduct within the rule stated in this Section, but it does not subject him to liability because of the absence of duty.”

Conceding that plaintiff was an invitee and that the general duty owed an invitee is the exercise of reasonable care, defendants’ position rests upon the often stated proposition that a possessor of land is not liable to an invitee for a condition on the land which is known or obvious to the invitee. § 343A, 2 Restatement of Torts, 2d, p. 218; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Harbourn v. Katz Drug Company, Mo.Sup., 318 S.W.2d 226, 228-229 [1-3], 74 A.L.R.2d 938. Defendants point out that the ice on the sidewalk was obvious and known to plaintiff, as shown by plaintiff’s own testimony. Therefore, they contend that there was no breach by defendants of any duty to plaintiff.

The basic reason behind excusing a possessor of land from liability to an invitee for known or obvious dangers is stated in the Restatement as follows (Comment e to Subsection (1), § 343A, 2 Restatement of Torts, 2d, p. 219) :

“In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.”

In this case, the jury could have found from plaintiff’s evidence that, although the condition had been observed by her, her encountering it on the occasion of her injury was not wholly a matter of choice, but was in effect dictated by defendants’ refusal to permit plaintiff to use a safe alternative route of proceeding upon defendants’ premises. In our opinion, plaintiff’s evidence did present a question for the jury’s determination of whether or not defendants’ conduct, under the circumstances, met the standard of care imposed upon them. Plaintiff’s knowledge of the situation, in these circumstances, would not relieve defendants of their obligation to use due care, although it would, of course, bear on the issue of plaintiff’s possible contributory negligence. Comment f, 2 Restatement of Torts, 2d, § 343A, p. 220; Prosser on Torts (3d ed.), § 61, p. 404.

Although, as defendants state, the conversation between plaintiff and Mrs. Gehlert gave rise to no new or additional duty on the part of defendants to plaintiff, that conversation could be found by the jury as putting Mrs. Gehlert on notice that to require plaintiff to return over the icy condition of the walk might involve an unreasonable risk of physical harm to plaintiff and require defendants’ conduct to be judged in the light of such knowledge. The fact that plaintiff had only minutes before safely negotiated her passage over the ice would bear upon the reasonableness of defendants’ action, but it would not require the conclusion that defendants’ conduct did conform to the standard of care.

Defendants also contend that plaintiff’s testimony shows that she was guilty of contributory negligence as a matter of law. Defendants state that plaintiff’s evidence was that the ice covered an area of some two feet on a walkway two or three feet in width and contend that, if she thought the condition was dangerous, she could have stepped over or around it. We cannot find as a matter of law that plaintiff had such a safe alternative route along the sidewalk that her reencountering the icy condition was negligence on her part. Plaintiff sought an alternative route through the house. From this the jury might infer that there was no safe alternative along the walk. The evidence did show that there was a heavy snow cover on the yard which might not permit plaintiff to avoid the ice by walking around it. The description of the width of the ice was stated as an estimate and does not compel the conclusion that plaintiff could have avoided the danger by the simple act of stepping across the icy area.

The judgment is reversed and cause remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges coucur.


text:
    Benito J. ENRIQUEZ, Respondent, v. CHEMICAL SEALING CORPORATION, and Aetna Casualty and Surety Company, Appellants.
    No. 52008.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 30, 1966.

      James W. Humphrey, Jr., Kansas City, for respondent.
    Schwartz, Hoffman & Brockus, Leo T. Schwartz, Kansas City, for appellants, Clarence B. Mitchell, Kansas City, of counsel.
   HOUSER, Commissioner.

This is a proceeding under The Workmen’s Compensation Law. Chapter 287, V. A.M.S. The Industrial Commission made an award in favor of employee Benito J. Enriquez. The circuit court affirmed the award. The total amount of compensation, medical allowances and interest thereon, as of the date of the judgment of the circuit court from which this appeal is taken, was $15,020.08. Employer claims nothing is due. We have jurisdiction by reason of the amount in dispute. Constitution of Missouri, Article V, § 3, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S.

Employee was injured when a forklift truck operated by him on employer’s premises ran off a loading dock, pinning his right leg under the truck. Employer and insurer denied any liability under the Act on the ground that the injury did not arise out of or in the course of his employment but happened while employee was engaged in unauthorized activity in violation of express instructions never to operate the truck because of his poor eyesight.

The referee denied compensation for failure of employee “to prove that he sustained an accident arising in the course of his employment.” The industrial commission reversed the referee’s award and allowed compensation, including in its findings of fact the following: “Employee denied that employer’s foreman told him not to drive the truck,” and “We do not find that employee was specifically forbidden by employer to operate any one of these forklift trucks.” The commission refused to elaborate on this finding on motion of employer and insurer, holding that its findings were sufficient to comply with statutory requirements and that the ultimate constitutive facts appear in reasonable detail. The circuit court affirmed on appeal. Employer and insurer have appealed from the circuit court judgment.

Enriquez was employed to tend an extruding machine. It was part of his duties to move boxes, barrels, skids and other materials from one part of the plant to another. In the operation of the extruding machine it was his duty, among other things, to procure and have ready at the machine “skids” or wooden platforms, which weighed 60 pounds each. The packaged material produced at the machine was hauled away on these skids. The production required about 3 or 4 skids during an 8-hour shift. Ordinarily he carried these to the machine by hand, one at a time, or other employees brought them on forklift trucks. Three trucks were provided by the employer for the use of the employees in the performance of their duties, for heavy lifting and transfer of heavy objects from one place to another in the plant. Almost all of the employees used the lift truck on one occasion or another. “Practically everybody” used them, although some of the employees drove them only occasionally. Their use was not confined to certain assigned drivers. “Anybody could use [them] if they were moving anything which was heavy, like a box, * * When more skids were needed at the extruding machine either Enriquez would procure them by hand or an employee “would just jump on” a truck and go get them. There were three shifts and three men were working on this operation at the extruding machine and all three of them would drive the trucks; except that Enriquez had not operated any of the forklift trucks before the accident during the 6 months that he had been working there.

No instructions were given employees when they went to work concerning the use of the trucks. “You just got on them and drove them.” The management made no mention about the use of the trucks. There were no rules or limitations on what people could drive these lift trucks. Employee testified as follows: “Now, Mr. Enriquez, right after you went to work there, didn’t Curtis Storey, your foreman, when Butcher was there, tell you that you were not to operate the fork lift truck and to keep away from the heavy machinery because of your poor eye sight? A No, sir. Q Is it your testimony he didn’t tell you, or is it your testimony that you don’t remember it ? A I don’t recall it. Q You don’t recall it. Now then, before this accident had you ever asked Curtis Storey, or Butcher, for permission to operate this fork lift truck? A No, sir.” He further testified that no one ever told him not to go over where the heavy machinery was, inside the building, and that he used the band saw there “a couple of times.”

On the occasion in question employee sat on top of a forklift truck to eat his lunch. After finishing his lunch a “person” whose name employee could not remember (“a big heavy-set fellow”) came by, turned the motor on by turning the starter switch, and asked employee “to get some skids” from the other side of the dock. Employee put the truck in gear, turned and operated the truck. In so doing the truck went off the docks. He applied the brakes as far down as he could pressing them 2 or 3 times, but they did not hold and the machine ran off the dock to the level of the railroad track 4 or 5 feet below. Six employees testified that the brakes were defective.

Employer-insurer’s evidence showed that employee had defective eyesight; that his foreman and the supervisor saw him operating a forklift truck about a month and a half after he started work there; that the supervisor told the foreman that Enriquez was not to drive “and go down and tell him so”; that the foreman told him that “it would be best for him not to be driving the forklift on account of his vision,” and that he should watch out, be careful on the heavy mixers and stay away from the machinery.

On this appeal employer and insurer first claim that there is no substantial, competent evidence that claimant had been authorized or permitted by employer to operate the forklift truck, or that employer had acquiesced in his operation of the truck or from which it could be inferred that he was so authorized, or that employee was acting within the scope and sphere of his employment. Second, they assert that the award was contrary to the overwhelming weight of the evidence; that the finding that employee was not specifically forbidden to drive the truck was unjustified by the evidence, and that the commission arbitrarily disregarded and ignored competent, substantial and unimpeached evidence that employee had been forbidden to operate the truck.

Considering these two evidential points together we have concluded that there is sufficient competent and substantial evidence in the record to support the finding of the commission that the accident arose out of and in the course of the employment; that the award was not contrary to the overwhelming weight of the evidence; that there was evidence pro and con on the question whether employee was specifically instructed not to operate the forklift truck, and that in resolving this fact question in employee’s favor the commission was not acting arbitrarily but was properly exercising its fact-finding function.

Although there is no direct evidence that employee was specifically authorized to operate the truck and notwithstanding he admitted that he did not ask for permission to do so, there is substantial circumstantial evidence of implied authority. There is no evidence indicating that it was customary for employees to obtain permission before using the trucks. On the contrary, the evidence indicates that no such permission was customarily sought or obtained. The trucks, furnished by the employer, were around and about the employer’s premises, available for the use of any employee needing them in the prosecution of employer’s work. There were no regular or assigned drivers. “Practically everybody” used them from time to time, some only occasionally, this employee only once. Those tending the extruding machine customarily and regularly used these forklift machines. Their use was not confined to those who had been specially trained to operate them; no formal training of those authorized to use the trucks was required or provided by employer; any employee desiring to use one of the trucks to do employer’s work simply got on the truck and started operating it. There were no rules or limitation as to who should operate them. Employee testified positively that his foreman did not tell him that he was not to operate these trucks. Under these circumstances the employees, including claimant, had implied authority to use the trucks when in their judgment it was necessary to do so in performing the duties of their employment. While he was sitting on one of the trucks another person, whom it may be inferred was an employee, started the motor and told Enriquez to get some skids.

In going after the skids Enriquez was performing a task which he was employed to perform, one within the ambit of his daily duties. In so doing he was acting in furtherance of his employer’s business. Instead of undertaking to procure a skid in his accustomed manner he undertook on this occasion, apparently by reason of the special circumstances, to procure them by using the forklift machine. In so doing he was not doing something outside the scope and course of his employment. He was merely adopting a different method or manner of performing one of his regular duties. He was doing something within the scope and course of his employment, notwithstanding he was doing it by a different means and in a different manner.

Employer and insurer, assuming the truth of their evidence that Enriquez had been definitely instructed not to use the machine, and claiming that this evidence was undisputed, cite Fowler v. Baalmann, Inc., Mo.Sup., 234 S.W.2d 11 and Kasper v. Liberty Foundry Co., Mo.App., 54 S.W.2d 1002, for the proposition that compensation is to be denied when an employee goes outside the scope and sphere of his employment and is injured in performing an activity which he has been expressly forbidden to undertake. The rulings in those cases, however, have no application here. This evidence was directly contradicted by employee and the fact-finding body has rejected this evidence in these words: “We do not find that employee was specifically forbidden by employer to operate any one of these forklift trucks.” The commission made a positive finding that “Employee denied that employer’s foreman told him not to drive the truck.”

Employer and insurer argue, however, that because Enriquez added “I don’t recall it,” when pressed on the matter, that his testimony was meaningless, lacked probative value, was insufficient to constitute a denial of the foreman’s testimony, and therefore the commission arbitrarily ignored and disregarded unimpeached testimony that En-riquez had been forbidden to operate the trucks. They cite Haire v. Stagner, Mo.App., 356 S.W.2d 305; Globe Automatic Sprinkler Co. v. Laclede Packing Co., Mo.App., 93 S.W.2d 1053; Little v. Manufacturers Ry. Co., Mo.App., 123 S.W.2d 220; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69 and Inman’s Adm’x v. United Rys. Co. of St. Louis, 157 Mo.App. 171, 137 S.W. 3, in support of the contention that employee’s testimony on this issue is without value. In none of these cases did the witness give any positive testimony. In them the testimony of the witnesses consisted of disclaimers of knowledge or recollection, which of course “are an unsatisfactory and unacceptable substitute for evidence.” Haire v. Stagner, supra, 356 S.W.2d 1. c. 311.

Next, employer and insurer make the point that the commission misinterpreted the law and misapplied the law to the facts, in finding that employee was operating the truck to procure skids for use in and in furtherance of the employer’s business and then concluding that that use related only to the manner or method by which employee accomplished his duty, and that he was not doing something outside the sphere of his employment. This point is based upon the assumption that employee had neither express nor implied authority to operate any of the trucks. Since as an employee he had implied authority to do so, and since under the facts as found by the commission Enriquez had not been forbidden to do so, the argument fails. Fowler v. Baalmann, Inc., supra, cited in this connection, has no application to the facts of this case. In Fowler the commission found that the employee, an airplane pilot, contrary to express orders of his employer not to fly on a night when weather conditions were bad, orders expressly communicated to the pilot, took the plane up after the flight had been cancelled, the plane had been placed in the hangar and the pilot had been so advised. Nor is the Kasper case, supra, helpful because it is so different on the facts. In that case claimant, a molder, in violation of strict rules known to claimant, that molders could not grind their own castings, went into a department of the plant where he was positively forbidden to go, for his own financial gain, and while grinding a molding was struck in the eye by a piece of emery wheel. The commission did not misinterpret or misapply the law in the case here for review.

Finally, employer and insurer contend that the commission improperly denied their request for amplification and clarification of its findings and conclusions, and that the judgment should be reversed for noncompliance with the commission’s duty to make findings sufficiently specific that the reviewing court may judge whether the findings themselves are supported by the evidence in the record and whether the facts so found are legally sufficient to support the determination. They say the award does not make straightforward findings and leaves in obscurity whether employer had authorized Enriquez to operate the trucks; on what authority or permission he was operating the truck when injured, and whether the operation was one of his assigned duties as distinguished from its use when operated by other employees. Without burdening this opinion with a verbatim recital of the findings dealing with the right of employeees to use the trucks it will be sufficient to say that their plain and unmistakable import is that employer furnished trucks for use by any of the employees as needed, without instruction as to how they should be driven, and that employee was not specifically forbidden to operate any one of them. The record plainly shows that no employee had express authority to use the trucks; that the trucks customarily were used by all employees as needed, without limitation, restriction or rule. In view of the custom and practice there was no need to show that Enriquez was specifically authorized to operate the truck. It is objected that the basis for the finding that Enriquez had not been forbidden to drive the truck cannot be determined from the paragraphs and context of the findings. The basis is the commission’s recital that “Employee denied that employer’s foreman told him not to drive the truck.”

We recognize the rule in Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, and other cases cited, that the commission should make findings of fact which show the actual grounds of decision and which are sufficiently specific to make possible an intelligent judicial review. Findings of fact should be stated in affirmative terms, positively and not negatively. The findings of fact in this case, however, while not in model form, are sufficiently understandable on the main issue to enable us to make this review.

No error appearing the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.