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    Christian H. WEHRMAN, Plaintiff-Respondent, v. LIBERTY PETROLEUM COMPANY, Inc., a Corporation, and Wilford Brown, Defendants-Appellants.
    No. 31272.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.
    Rehearing Denied Oct. 13, 1964.

      Alvin A. Wolff, Hullverson, Richardson & Hullverson, Orville Richardson, Corinne Richardson, St. Louis, for defendants-appellants.
    Coleman, Ross & Cekovsky, Hal B. Coleman, Clayton, William L. Mason, Jr., St. Louis, for plaintiff-respondent. ,
   DOERNER, Commissioner.

Plaintiff, Christian H. Wehrman, sued to recover actual damages of $4,000 and punitive damages of $15,000 from defendants Liberty Petroleum Company, Inc. and Wilford Brown for causing him to be falsely arrested. The jury returned a verdict against both defendants for actual damages of $100 and punitive damages of $7,500, judgment was entered in conformity therewith, and after unavailing after-trial motions the defendants appealed.

The numerous points and sub-points raised by defendants comprise most of the grounds of appellate review. They contend that error was committed in overruling their motions for a directed verdict at the close of all the evidence; in the giving of certain instructions on behalf of the plaintiff; in the refusal of instructions offered by the defendants; and in the admission of certain evidence. Lastly, they complain that the verdict for $7,500 for punitive damages is excessive.

Defendants’ initial contention requires a review of the evidence most favorable to plaintiff. Defendant Liberty Petroleum Company, Inc., whose home office was in Mount Vernon, Illinois, owned and operated a filling station, designated as No. 15 in its chain, at Hebert and Florissant Avenues in the City of St. Louis, Missouri. Defendant Wilford Brown was the manager of the station. Plaintiff, then a salesman for a hearing aid company, was a customer. On September 30, 1957, about 9:00 A.M., plaintiff stopped at the station on his way downtown to his office and had his tank filled with gasoline, for which he paid $4.60 in cash. Around 11:00 A.M. he left his office, obtained his car from the lot where it had been parked, and started to' drive home for lunch. Plaintiff experienced trouble with the motor, which repeatedly died, and by the time he reached Delmar Avenue his battery was dead. His automobile was pushed into a nearby filling station where the primary trouble was diagnosed by the attendant as water in the gasoline. The fuel pump was cleaned, part of the gasoline was drained from the bottom of the tank, a can of Heet was put into the tank to cut any water remaining in the gasoline, and the battery was charged, for which services plaintiff paid $4.50. Plaintiff then drove to Liberty Petroleum’s station where he complained to Brown that the gasoline he had purchased there had contained water. Brown said he knew it had, because he had found water in his own gasoline taken out of the same tank, and because another customer had already been in to complain. Plaintiff pointed out that he had had $9.10 of expense ($4.60 for the gasoline and $4.50 for the service to his car), and Brown stated that he would take plaintiff’s name, address and phone number and have the company mail him a check.

On two occasions that afternoon plaintiff •experienced further trouble in starting his •car, and spent an additional $4.05 for services and cans of Heet. Sometime between October 2 and October 11, plaintiff went hack to Liberty Petroleum’s filling station •and informed Brown of his further difficulties and his additional expenses. Brown told plaintiff that he had been authorized to pay the $9.10 in cash, but in view of the further expense that plaintiff should write to James Dohono, Brown’s superior at Liberty Petroleum’s office, so that one check •could be made out for the entire amount. Brown thereupon wrote out Dohono’s name .and the company’s address, in Mount Vernon, Illinois, on a slip of paper and gave it to plaintiff. Plaintiff wrote Dohono, as Brown had suggested, and advised Dohono that he would call at the station on October 16.

Plaintiff received neither a check nor any reply, and on October 16, 1957, about 9:00 A.M., he drove in to the station to talk to Brown. The latter was waiting on another customer but called to him, “ * * * T will be right with you, Mr. Wehrman.’ ” While waiting, plaintiff was approached by another attendant and asked if he needed gas. Plaintiff replied that he didn’t have time, but when the attendant said that Brown would be busy for some time, plaintiff stated he might as well get his car filled up. Plaintiff backed his car up to the pump and the attendant put in gasoline and oil amounting to $2.65. Thereafter Brown approached plaintiff, asked plaintiff if he had heard from the company, and when plaintiff answered “No,” Brown said that he was not going to hear from it because the company was not going to pay plaintiff a cent. Plaintiff rejoined that he didn’t understand, and Brown then stated that plaintiff would never prove that they were the ones who sold him the watered gasoline. Plaintiff at first thought Brown was joking, but when he realized that Brown was serious, inquired whether Brown wanted him to get a lawyer. Brown answered that plaintiff should get a half dozen lawyers, that plaintiff would not spend three or four hundred dollars to collect thirteen or fourteen dollars. In an effort to change Brown’s mind, plaintiff suggested to Brown that a customer waiting at another pump be told of the controversy and his reaction obtained. Brown told plaintiff to go ahead, that it wouldn’t do him any good. Plaintiff and Brown approached the customer, and plaintiff explained about his bills, but the customer said that he didn’t want to get mixed up in the matter.

Brown thereupon told plaintiff that he would never get paid, and demanded payment of $2.65 for the gas that had been put in plaintiff’s car. Plaintiff replied that he hadn’t come in to buy, that the sale had been solicited, that if Brown wanted the gas he could drain it out of his tank, or that Brown could deduct the amount from what was owed plaintiff. Brown refused to drain the tank, stated that he wasn’t running a charge account, and that if plaintiff didn’t pay he would call the police. Plaintiff said that Brown didn’t have to call the police, that he would call them. Brown warned him not to put one foot in the office, and plaintiff again told Brown to call the police, that he would wait. Brown’s answer was, “ * * * ‘I’m telling you for the last time it’s pay or get off.’ * * * ” Plaintiff said, “ * * * ‘Well, I’ll get off.’ * * ” and as he was driving away plaintiff told Brown that his car would be parked at Eighth and Market Streets. According to plaintiff, Brown comported himself throughout in an aggressive and nasty manner.

Brown telephoned the police'as soon as plaintiff drove away. Officer Hamlin and another policeman, not identified, came to the filling station in answer to Brown’s telephone call. Hamlin, whom Brown knew as a customer of the station, was the one who talked to Brown about the matter. By the time the trial was held Hamlin had died. The only evidence as to what Brown told Hamlin was extracts from Brown’s deposition, which plaintiff read to the jury over defendants’ objections. Since no error is assigned for review with reference to the admission of such evidence we accordingly consider it as if it came in without objection. Myers v. Karchmer, Mo., 313 S.W.2d 697, 708. According to Brown, all that he told Officer Hamlin was that a man came in to the station, made a purchase, refused to pay for it, and drove out • without paying. Brown, whose not infrequent answers on both direct and cross-examination were, “I don’t remember that,” testified on direct examination that he gave Hamlin information about the kind of car it was and its license number. On cross-examination he stated that he didn’t give Hamlin plaintiff’s name and address because plaintiff had never given them to him, but when pressed about plaintiff’s prior complaints of watered gasoline, recalled that plaintiff had given such information to him but that he had sent it to the company.

Hamlin’s report (not introduced in evidence) reached Detective Thurman, who traced the automobile license number to plaintiff. Plaintiff was arrested at his home by Thurman and Detective Aikens on October 19, 1957, about 8:30 A.M. Thurman advised plaintiff that he was arrested for larceny under fifty dollars. Plaintiff was taken in a police car tq the Fifth District police station at 1901 Penrose Avenue, . where he was booked under the same charge. Thurman then contacted Brown, and after plaintiff had been at the station about 10 or 15 minutes Brown arrived. According to plaintiff, the detectives asked Brown “* * * if I was the man” and Brown answered, “Yes.” Plaintiff testified that the detectives questioned Brown, and that Brown finally decided he would pay plaintiff if plaintiff would give him a receipt. Plaintiff agreed to give Brown a receipt provided that he obtained a copy. Brown paid plaintiff $9.00, prepared a receipt and a copy thereof, and plaintiff signed it. The copy, which was read to-the jury, was as follows:

“October nineteen, 1957,1 paid out to Mr. Wehrman nine dollars. The amount he paid for the purchase price of the Ethyl, gas purchase. Also repair bills for removal of water from tank. Total pay nine dollars. Liberty Petroleum Company. Wilferd Brown. Received payment 10-19-57. C. H. Wehrman.”

Plaintiff insisted that he did not pay Brown $2.65 for the gasoline and oil he had obtained on October 16, and denied Brown’s, testimony that each had paid the other. Following the payment to him by Brown,, plaintiff was released. Detective Thurman testified that as a matter of routine a warrant was thereafter applied for and refused.

As plaintiff points out, in determining whether plaintiff made a submissible case we need not concern ourselves with the question of whether the arrest in question: was lawful, nor with the issue of agency,, for defendants do not raise either of those-propositions. Defendants’ sole contention: is that, as a matter of law, Brown did not cause the arrest of plaintiff. The long-established rule in this state is that in order to make a submissible case for false arrest: it must appear that the defendant caused or procured the arrest of the plaintiff, Heinold v. Muntz T. V. Inc., Mo., 262 S.W. 2d 32 (affirming Hoock v. S. S. Kresge Co., Mo.App., 222 S.W.2d 568); Wright v. Automobile Gasoline Co., Mo., 250 S.W. 368; State ex rel. Fireman’s Fund Ins. Co. v. Trimble, 294 Mo. 615, 242 S.W. 934 (reversing Mo.App., 235 S.W. 174). Plaintiff is not required to prove that the defendant ordered or directed his arrest. Wright v. Automobile Gasoline Co., supra; Thompson v. Fehlig Bros. Box & Lumber Co., Mo.App., 155 S.W.2d 279; Wright v. Hoover, 211 Mo.App. 185, 241 S.W. 89. A submissible case is made if from the evidence it appears that the defendant countenanced, advised, encouraged, approved, or instigated the arrest. Heinold v. Muntz T. V. Inc., supra; Hoock v. S. S. Kresge Co., Mo., 230 S.W.2d 758; Davis v. Weil Clothing Co., Mo.App., 367 S.W.2d 19. The word “instigate” was defined in Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239, 242, as follows:

“We have said that ‘instigate’ means ‘to stimulate or goad to an action, especially a bad action’; and that ‘one of its synonyms is “abet,” which “means, in law, to aid, promote, or encourage the commission of an offense.” ’ State v. Fraker, 148 Mo. 143, loc. cit. 165, 49 S.W. 1017, 1022; this definition has been followed in a malicious prosecution case, Hughes v. Van Bruggen, 44 N.M. 534, 105 P.2d 494, * * *»

And the defendants’ instigation of the arrest may be shown by either direct or circumstantial evidence. Thompson v. Fehlig Bros. Box & Lumber Co., Mo.App., 155 S.W.2d 279; Knupp v. Esslinger, Mo.App., 363 S.W.2d 210.

Defendants argue that all Brown did was to give the police information of the occurrence, and point to a line of cases, beginning with the decision of this court in 1877 in Lark v. Bande, 4 Mo.App. 186, which hold that the mere giving of wrong information to the police, even though it results in an arrest, cannot be the basis of an action for false arrest and imprisonment. Hoock v. S. S. Kresge Co., supra; Snider v. Wimberly, supra; State ex rel Fireman’s Fund Insurance Co. v. Trimble, supra; Vimont v. S. S. Kresge Co., Mo. App., 291 S.W. 159. But a careful analysis-of those cases discloses that the word “wrong” was used in the sense of erroneous, not that of false or misleading, and that in each of the cases cited the informant believed, at the time he reported the matter to the police, that the information given was correct. For example, in the initial' case of Lark v. Bande, supra, plaintiff requested defendant to give him change for a ten-dollar bill. Defendant believed the bill to be counterfeit and so reported to-the police, who arrested plaintiff. It was subsequently determined that the bill was-genuine, and plaintiff was released. The court held that since plaintiff had merely reported the facts, or what he honestly supposed were the facts, to the police he-was not liable for the false arrest even though the information given proved to be incorrect. We are of the opinion, however, that a different rule should prevail' where the informant knowingly and deliberately gives the police an incomplete- and biased version of the occurrence which, induces them to believe that another is a thief, and results in the latter’s unwarranted arrest. It seems to us that from! such evidence the jury could reasonably find that the informant instigated the arrest by stimulating or goading the police-to take such action. See Wright v. Automobile Gasoline Co., Mo., 250 S.W. 368;: Knupp v. Esslinger, Mo.App., 363 S.W.2d. 210.

In the instant case, had Brow» fully reported to the police all of the facts-known to him we would have no hesitancy in holding that any arrest which followed could not be said to have been instigated by him. But Brown’s own testimony, as-well as that of plaintiff, shows that the-information which Brown gave to the police was incomplete, inaccurate, and highly misleading. According to Brown, all that, he told Officer Hamlin was that a maní came in to the station, made a purchase,, refused to pay for it, and drove out without paying. He did not tell the officer that he knew the man, or his name, although according to plaintiff Brown had called him by name when plaintiff drove in that morning. Nor, according to Brown’s own testimony, did he tell the policeman any of the other facts concerning the dispute. He did not tell of the water in the gasoline previously purchased by plaintiff; of the admitted indebtedness of $9.10 owed plaintiff; of the argument regarding whether the $2.65 purchase should be charged against the amount owed plaintiff; of plaintiff’s offer to allow Brown to remove the gasoline from plaintiff’s tank, and his (Brown’s) refusal to do so; of plaintiff’s offer to call the police, and his refusal to allow plaintiff to do so; of his order to plaintiff to leave the station; nor of plaintiff’s advice, as he left, regarding where his car would be parked that day. The jury could find that by knowingly giving the police such incomplete, biased and misleading information Brown instigated plaintiff’s arrest, and the court, therefore, did not err in overruling defendants’ motions for a directed verdict. Wright v. Automobile Gasoline Co., supra; Knupp v. Esslinger, supra; Steiner v. Degan, Mo.App., 101 S.W.2d 519; Wright v. Hoover, 211 Mo.App. 185, 241 S.W. 89; Martin v. Woodlea Inv. Co., 206 Mo.App. 33, 226 S.W. 650.

Under two points and various subdivisions in their joint brief defendants raise several charges of error regarding plaintiff’s instruction No. 1. That instruction read as follows:

“ ‘The Court instructs the jury that if you find and believe from the evidence that the defendants did unlawfully cause plaintiff to be arrested on the 19th of October, 1957, by police officers of the City of St. Louis, without warrant of law, if you so find, and to be carried by said police officers through the streets of St. Louis in a police conveyance to the police station and to be there held, if you so find, then your verdict shall be in favor of the plaintiff and against the defendants’ ”

Defendant Liberty Petroleum frankly concedes that there was evidence from which the jury could find that it was within Brown’s authority to call the police, but it complains that the instruction did not require the jury to find that Brown was acting within the scope of his employment in causing plaintiff’s arrest, if the jury found that he did so. If there was any uncertainty arising either from a conflict in the evidence or because the undisputed facts might lead reasonable men to draw different conclusions as to whether Brown was acting within the scope of his employment, then, of course, the question became one of fact to be settled by the jury; otherwise it was one of law for the court. De Mariano v. St. Louis Public Service Co., Mo., 340 S.W.2d 735; Salmons v. Dun & Bradstreet, 349 Mo. 498, 162 S.W.2d 245, 141 A.L.R. 674. Brown was the manager of the corporate defendant’s station, which implied some general powers. Heinold v. Muntz T. V. Inc., Mo., 262 S.W.2d 32, 36. The undisputed evidence was that his powers and duties included those of selling the company’s products and collecting from the purchaser the amount due on the sale. The testimony of both sides was that the argument which developed arose over the company’s gasoline and oil that had been put in plaintiff’s car and plaintiff’s refusal to pay cash for the same. Brown’s incomplete and misleading report to the police, and the arrest of plaintiff which followed, was on account of the theft, or supposed theft, of the Company’s products. There was not a word of testimony offered by the corporate defendant in any way questioning Brown’s authority with respect to the arrest. In fact, Brown’s own testimony was favorable to the plaintiff, for he testified that after he had contacted the police and b.efore plaintiff was arrested he had discussed the matter with Dohono, his supervisor, who was in the Company’s home office. There was no evidence that Dohono or the company disapproved or disavowed Brown’s action. And, according to Brown, after he had paid plaintiff the $9.00 at the police station he sent the receipt obtained from plaintiff to the company, which reimbursed or gave him credit for the expenditure. Furthermore, the defendant Liberty Petroleum did not offer any instruction submitting to the jury the issue of whether or not Brown acted within the scope of his employment. The only instructions offered were joint instructions as to whether Brown caused the arrest of plaintiff, justification, and other issues. Under this state of the record defendant Brown’s authority can hardly be said to have been a controverted fact below. Oliver v. Kessler, Mo.App., 95 S.W.2d 1226.

The second and third complaints regarding plaintiff’s Instruction No. 1 are that it was erroneous because it authorized a verdict for both actual and punitive damages without submitting malice, an essential element of punitive damages; and that it erroneously compelled a verdict as to punitive damages, as well as compensatory damages, and failed to inform the jury that the former are discretionary. The short answer to both contentions is that the instruction did not authorize or compel a verdict for any damages. That subj ect was covered in other instructions, which will be reviewed later.

Defendant's final claims of error as to Instruction No. 1 are that the lawfulness of the arrest was assumed, although that fact was a contested issue; that no facts were hypothesized from which the lawfulness or unlawfulness of the arrest could be determined by the jury; and that the phrase “ * * * and to be carried by said police officers through the streets of St. Louis in a police conveyance to the police station and to be there held, if you so find * * * ” was a circumstance in the case totally irrelevant for the purpose of liability. In an action for false arrest where, as here, the arrest is made without a warrant, the law presumes that the arrest was unlawful, and the burden of pleading the lawfulness of the arrest as an affirmative defense, and of proving it, devolves upon the defendant. Pandjiris v. Hartman, 196 Mo. 539, 94 S.W. 270; Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68; Burton v. Drennan, 332 Mo. 512, 58 S.W.2d 740. No plea of justification was raised in defendants’ answer, as was done in Frank v. Wabash R. Co., Mo., 295 S.W.2d 16. Under that state of the pleadings the defendants were entitled to introduce evidence tending to show that Brown had not instigated the arrest of plaintiff, but the lawfulness of the arrest was not a contested issue. Pandjiris v. Hartman, supra. And it was not error for the court to assume in the instruction that the arrest of plaintiff was unlawful. Engelbrecht v. Roworth, 236 Mo.App. 459, 157 S.W.2d 242. If the arrest was made without a warrant, it is only when the plaintiff’s own evidence tends to show him guilty of the crime that the plaintiff must submit to the jury, by his own instruction, the issue of the unlawfulness of the arrest. Engelbrecht v. Roworth, supra. That situation, however, did not arise in the instant case. As to the phrase about which defendants complain, the fact of plaintiff’s detention by the police was a necessary element of plaintiff’s case. Richardson v. Empire Trust Co., 230 Mo. App. 580, 94 S.W.2d 966.

Having considered all of the defendants’ complaints regarding plaintiff’s Instruction No. 1, we turn to those leveled at plaintiff’s Instructions Numbered 7 and 8, which read as follows:

“ ‘The Court instructs the jury that if you find in favor of the plaintiff under Instruction No. 1, then you are further instructed that if you find that in so causing the arrest of the plaintiff, if so, the defendants charged the plaintiff with the commission of larceny, if you so find, and that the plaintiff was not guilty of larceny, if so, and if you further find that the defendants caused such arrest maliciously and with intent to cause injury to plaintiff’s character and reputation, if you so find, then you may, in your discretion, in addition to the actual damages awarded plaintiff, if any, allow him such further sum by way of punitive damages as you may find and believe from the evidence as will be a proper punishment to the defendants for such conduct, if so, and a proper -warning to others.’ ”
“ ‘The Court instructs the Jury that "the term “malice” as used in the instructions, does not necessarily mean actual ill will or spite, but means merely intentional doing of a wrongful act without just cause or excuse.’ ”

Defendants have intermingled their complaints regarding these instructions, but as hest we understand them the claims of error made are these: (1) the issue of punitive ■damages should not have been submitted to the jury since there was no substantial evidence that Brown acted maliciously; (2) the instructions did not submit any partic-ular act which the jury could find had been intentionally done; (3) the instructions permitted the jury to award punitive damages for any act committed between September 30, 1957 and October 19, 1957; and (4) the word “malice” was improperly defined. Of these, the last shall be first. Instruction No. 8 properly defined legal malice as the intentional doing of a wrongful act without just ■cause or excuse. Brown v. Sloan’s Moving & Storage Co., Mo., 296 S.W.2d 20; Raymond, Missouri Instructions, Vol. 2, p. 207, Sec. 4101. Next, considering only the fore.going evidence favorable to the plaintiff, which in the interest of brevity we will not ■repeat, we think the jury could reasonably infer that Brown intentionally gave the ■police an incomplete and misleading account of what had occurred between him •and plaintiff, for the purpose of wrongfully ■causing the arrest of plaintiff, and are of the opinion that the court therefore did not •err in submitting the issue of punitive damages to the jury. Winegar v. Chicago, B & Q R. Co., Mo.App., 163 S.W.2d 357; Oliver v. Kessler, Mo.App., 95 S.W.2d 1226. There is no merit to either the third or fourth complaint. The wrongful act, and the only -wrongful act hypothesized, was that of •causing the unlawful arrest of plaintiff.

Defendants’ Point VII is that in two instances the trial court erred in admitting hearsay into evidence. The first occurred while plaintiff’s witness Thurman, the detective who made the arrest, was on the' stand. On redirect examination he was asked whether before he had arrested plaintiff he had read the “offense” or original report. He answered that he had, that it is given to the detectives to follow up. He was then asked whether the report contained a statement by Brown that he would prosecute in the event of an arrest. Counsel for defendants objected on the grounds that the question called for hearsay, and the objection was overruled. The witness then answered that there was a paragraph'stating that if he (Brown) could identify he would prosecute if an arrest was made. Of course the testimony as to what a report contained, which was prepared by another officer and not introduced, was hearsay and improperly admitted, over timely objection. However, on direct examination by counsel for the defendants Brown was asked whether he recalled telling the police, “ * * * that you would prosecute if the man was arrested. * * * ” His answer was, “ I don’t remember if I told him that or not.” Counsel then inquired “You don’t deny that, though?” and Brown answered, “No, I don’t.” Since the evidence improperly admitted related to a fact not disputed, the error was harmless. Lesch v. Terminal R.R. Ass’n of St. Louis, Mo., 258 S.W.2d 686; Minks v. Smith, Mo. App., 367 S.W.2d 6. The second instance of which defendants complain occurred when plaintiff was on the stand, during direct examination. He was asked whether he had found out who the person was who had made the complaint. When defendants’ counsel’s objection on the grounds of hearsay was overruled, counsel argued that whether the plaintiff had found out would call for a conclusion and be pure hearsay. The court then inquired of plaintiff from whom plaintiff had found out, and plaintiff answered that it was “Mr. Brown himself.” Plaintiff’s counsel then asked whether plaintiff had found out from Mr. Brown himself, and plaintiff responded, ■“Calling down at the station they asked if this was the man that he had arrested and he said, ‘Yes, that is the man.’ ” Defendants’ ■counsel thereupon objected and asked that the answer be stricken and the jury instructed to disregard it, “on the grounds that is hearsay, hearsay so far as the oil company is concerned.” “The Court: Overruled.” Although it was evident that plaintiff’s counsel was seeking to elicit from plaintiff what Brown had said at the station regarding the arrest, the objection that the testimony was “ * * * hearsay so far as the oil company is concerned” was not made until after the question was answered. There is nothing in the record to indicate that the answer was given before defendants’ counsel had an opportunity to object. As was pointed out in Doherty v. St. Louis Butter Co., 339 Mo. 996, 98 S.W. 2d 742 and Minks v. Smith, Mo.App., 367 S.W.2d 6, an objection, or a motion to strike out evidence, comes too late and will not be considered on appeal when not made at the first opportunity. Furthermore, since Brown was a defendant the evidence, though hearsay, was admissible against him as an admission against interest. State ex rel S. S. Kresge Co. v. Shain, 340 Mo. 145, 101 S.W. 2d 14. As to defendant Liberty Petroleum, that defendant admits in its brief that there was evidence from which the inference could be drawn that it was within the scope of Brown’s authority to call the police and inform them of what had transpired. It would seem to follow that Brown was also acting within the scope of his employment when he appeared at the police station to identify plaintiff as the individual who had, supposedly, stolen the corporate defendants’ products. The statement attributable to Brown was made while the transaction to which it related, the arrest, was still pending. In Roush v. Alkire Truck Lines, Inc., Mo., 299 S.W.2d 518, 521, it was stated, “ * * * As a general rule it may be said that an admission of an agent or employee, not a part of the res gestae, ‘may be received in evidence against his principal, if relevant to the issues involved, where the agent, in making the admission, was acting within the scope of his authority, and the transaction or negotiation to which the admission relates was pending at the time when it was made. * * * ’ ” Since those prerequisites were satisfied in the instant case it would appear that the statement was also admissible as an admission against interest so far as the corporate defendant was concerned.

Defendants further charge that the court erred in refusing to give certain instructions offered by them. By their instruction G defendants sought to tell the jury that plaintiff was not entitled to recover and its verdict should be for defendants if it found that, “ * * * one of the attendants or Mr. Brown informed him (plaintiff) that if he left without paying cash they would notify the police, and that the plaintiff then told them, in effect, to go ahead and call the police, and then drove away from the station * * Defendant argues that, “This instruction properly submitted the defense of consent by the plaintiff to the subsequent arrest and detention by the police. * * * ” We think not. In the first place the instruction did not contain the words, “consent,” “arrest,” or “detention.” Nor would the evidence that plaintiff told the attendant or Brown “ * * * in effect, to go ahead and call the police * * * ” justify an inference that plaintiff thereby consented to his subsequent arrest and detention. If evidence that Brown merely called the police and fully reported all of the facts to them would not support an inference that he requested or instigated plaintiff’s arrest, as defendants contended, then surely evidence that plaintiff told Brown to go ahead and call the police would not justify an inference that plaintiff thereby consented to his subsequent arrest.

Defendants likewise complain of the court’s refusal to give their Instruction No. L. That instruction would have told the jury, in effect, that even if it found that plaintiff’s arrest was unlawful and that plaintiff had not committed a punishable offense, nevertheless if Brown had reasonable grounds to “suspect” that an offense had been committed for which plaintiff could lawfully be arrested, that Brown then had just cause or excuse for the arrest and neither Brown nor his employer could be required to pay punitive damages. The quoted word indicates the vice in the instruction. There is a sharp difference between a belief and a mere suspicion. Compare Leathers v. Sikeston Coca-Cola Bottling Co., Mo.App. 286 S.W.2d 393, 394, and State v. Dildine, Mo.App., 269 S.W. 653, 654. The instruction did not even require the jury to find that Brown did in fact “suspect,” much less believe, that plaintiff had committed an offense. The court did not err in refusing the instruction as offered.

Defendants’ eighth and final point is that the verdict for $7,500 for punitive damages is excessive. While defendants cite various cases in which verdicts for punitive damages were held to be immoderate, they do not suggest or indicate what amount they consider would have been reasonable in this case, nor by what amount they believe the instant verdict to be excessive. The chief purposé of punitive damages, as its name suggests, is to inflict punishment; the rationale being that the punishment assessed is an example and a deterrent to similar conduct. Polk v. Missouri-Kansas-Texas R. Co., 351 Mo. 865, 174 S.W.2d 176; State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757. The numerous factors to be considered, as stated in State ex rel St. Joseph Belt R. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351, 356, are: “ * * * Exemplary damages are inflicted by way of punishment for the doing of an act maliciously and are proportioned to the degree of malice, criminality, or contumely characterizing the act, to the age, sex, health, and character of the injured party, the intelligence, standing, and affluence of the tort-feasor, and other like circumstances. * * *” In view of the variegated nature of the factors to- be taken into account, there is no hard and fast rulé that can be adhered to, Gerharter v. Mitchellhill Seed Co., Mo.App., 157 S.W.2d 577, and each case must turn more or less upon its own peculiar facts. Walker v. St. Joseph Belt R. Co., Mo.App., 102 S.W.2d 718. Generally, punitive damages must bear some relation to the injury, though they need not bear any relation to the damages allowed by way of compensation. State ex rel. St. Joseph Belt R. Co. v. Shain, supra. Plaintiff was 58 years of age at the time of his arrest. The record reveals that some months before the arrest he had been under the care of Dr. Albert Kap-lan, whose specialty was the treatment of tuberculosis, and that plaintiff had been a patient in Alexian Brothers Hospital during June and July 1957. Cr-oss-examination revealed that in the years preceding the arrest plaintiff had at times operated his own business, and at other times had worked for various employers. At the time of the arrest plaintiff was employed as a salesman for a hearing aid company, on a commission basis. His income tax return for the year 1957 showed that during the seven months he was -so employed ■ his earnings averaged $600 per month. Plaintiff testified that he had never had anything happen to him before like his arrest for larceny; that after that occurred he was unable to concentrate on his work; that he would call at a prospective purchaser’s home, but his mind would drift back to being arrested; and that he therefore left the hearing aid company in December, 1957.’

Regarding the factors of malice and contumacious conduct, we have already noted that according to his own testimony when Brown called the police he gave them an incomplete and misleading account of what had occurred. In our opinion defendants’ own evidence, if accepted, revealed scant justification for communicating with the police in the first place. According to Brown, the Corporate defendant had admitted an indebtedness to plaintiff of $9.10 for the watered gasoline, and had authorized him to pay that amount to plaintiff. Assuming that on October 16, 1957, plaintiff refused to pay the $2.65 for the gasoline and oil with which his car had been serviced, and in the manner related by Brown, no reason appears why that amount could not have been treated as a credit against the greater amount defendant Liberty Petroleum owed plaintiff. Defendants did not introduce any evidence to controvert plaintiff’s testimony that he had never been arrested before, nor did they produce any evidence which impugned plaintiff’s previous good character and reputation. Plaintiff was arrested and taken to the police station in a police car, where he was booked, and while his restraint was not of long duration, the fact remains that, according to Detective Thurman, there is on file in the St. Louis Police Department a record that plaintiff was arrested for larceny, which “ * * * will remain there until the day he dies.” In that connection it is appropriate to recall what Shakespeare said in Othello (Act III, Sc. 3, Line 155) :

“Good name in man and woman, dear my lord, Is the immediate jewel of their souls; Who steals my purse steals trash; ’tis something, nothing; ’Twas mine, ’tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed.”

It was stated in Jones v. West Side Buick Auto Co., 231 Mo.App. 187, 93 S.W.2d 1083, 1089, that in a matter of this nature our responsibility “ * * * is to interfere with the jury’s verdict upon the issue of punitive damages only where it plainly appears that the verdict was so out of all proper proportions as to reveal improper motives and an absence of honest exercise of judgment by the jury in its rendition. In other words, the power of an appellate court to revise an award of punitive damages, while it exists, is nevertheless to be exercised sparingly and in extreme cases only, since the question of the amount of such an allowance may not from its very nature he measured by any fixed rules or standards and is therefore to be left to repose largely in the sound discretion of the jury. * * *” We note that as long ago as 1943 our Supreme Court affirmed a judgment for $9,000 for punitive damages. Polk v. Missouri-Kansas-Texas R. Co., 351 Mo. 865, 174 S.W. 2d 176. After carefully considering the evidence in the light of the factors' mentioned in State ex rel. St. Joseph Belt R. Co. v. Shain, supra, we think there is no warrant for our interference with the amount of the verdict.

The judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

RUDDY, P. J., ANDERSON, J, and L. F. COTTEY, Special Judge, concur.

WOLFE, J., not participating.


source: Caselaw Access Project

author: JAMES D. CLEMENS, Special Judge.

license: Public Domain

text:
    Dolores MAXEY, (Plaintiff) Appellant, v. GENERAL ELECTRIC COMPANY, a corporation, (Defendant) Respondent.
    No. 31657.
    St. Louis Court of Appeals. Missouri.
    Sept. 15, 1964.
    Rehearing Denied Oct. 13, 1964.

      Edward J. Delworth, Clayton, Henry W. Simpson, St. Louis, for plaintiff-appellant.
    Fordyce, Mayne, Hartman, Renard & Stribling, Thomas Rowe Schwarz, P. Terence Crebs, St. Louis, for defendant-respondent.
   JAMES D. CLEMENS, Special Judge.

Plaintiff appeals from a judgment which set aside her $4069.50 verdict. Her claim was made under Section 290.110 RSMo 1959, V.A.M.S., which provided that an employee discharged without being paid wages then due could recover those wages accruing up to the time of judgment. Defendant paid plaintiff wages up to the time she was disabled by an injury, but did not pay her for “sick leave” thereafter. The issue here: Did plaintiff’s employment terminate at the time she was disabled by the injury, or did the employment terminate a week later when she received written notice thereof?

The essential facts testified to on behalf of plaintiff or admitted in her brief are: In 1960 plaintiff was hired by defendant as a secretary. A part of the fringe benefits promised her was that each year she was to have twenty days of sick leave with pay. Early in 1962 plaintiff’s husband began making frequent phone calls to her and to her supervisor at the office. These calls falsely accused them of improprieties, and interfered with' the orderly conduct of the office. Finally, plaintiff was told that because of this she was free to seek other employment, and that if there was such further conduct she would be discharged.. Then on May 10, 1962, plaintiff’s husband came to the office and assaulted plaintiff, breaking her jaw. Plaintiff then had eleven days of sick leave unused. She was taken to the company doctor and later to a hospital. Then on May 15th plaintiff’s superior wrote her a letter saying her employment had been terminated on May 11, the day following the assault. A check was enclosed covering plaintiff’s regular wages to May 11. This letter was received by plaintiff in the hospital on May 17. On May 21, plaintiff’s attorney wrote the defendant demanding “all severance pay due her” but defendant denied further liability.

Plaintiff’s petition and her submission to the jury were on the theory (1) that her employment was not terminated until she received defendant’s letter on May 17, and (2) that by virtue of her right to sick leave compensation defendant then owed her “wages” for the period from May 11 to May 17. Defendant contends that (1) plaintiff’s employment terminated on May 11 when it decided not to continue that employment, and that (2) even if plaintiff was thereafter entitled to compensation for sick leave for the period of May 12 to May 17, this did not constitute “wages” under the cited statute.

Our review will be limtied to the points relied on in plaintiff’s brief. V.A. M.R. 83.05, and cases cited in Mo.Dig., Appeal and Error, Plaintiff’s two points relied on here are that the trial court erred in sustaining the defendant’s motion for a directed verdict because (1) “plaintiff proved an employment agreement to continue wages during sickness prior to her discharge”, and (2) “plaintiff was not paid all her wages earned prior to her discharge”. (Our emphases) Defendant paid plaintiff only to May 11 and not to May 17, so the only issue here is whether plaintiff was discharged on May 11 or on May 17.

In support of her contention that her employment did not terminate until she received written notice on May 17, plaintiff cites Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262(19), and Clarkson v. Standard Brass Mfg. Co., 237 Mo.App. 1018, 170 S.W.2d 407(10). In each case a written contract was construed to be for an indefinite term, and it was held that the contract could therefore be terminated at will upon reasonable notice. The point of necessity of notice was not discussed. These cases and plaintiff’s citations to Corpus Juris Secundum and American Jurisprudence do not help her contention that her employment was not terminated until she received notice of her discharge.

No Missouri case has been cited by counsel nor found by us holding that notice is required to terminate a contract of employment for an indefinite period. However, such employment may be terminated at the will of either party with or without cause. Culver v. Kurn, 354 Mo. 1158, 193 S.W.2d 602(2), 166 A.L.R. 644; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262(17). So the question before us is whether the defendant did will the termination of plaintiff’s employment on May 11. Consider: Defendant had warned plaintiff that if her marital problems again intruded upon defendant’s business she would be discharged. They did so intrude on May 10. On that date plaintiff left her employment, unable to perform her duties. On the next day, May 11, plaintiff’s superior returned to town, was informed of the occurrence, and notified defendant’s payroll department that plaintiff was discharged as of that date. On May 15 defendant sent her a check for wages to May 11 and wrote plaintiff of her discharge. These facts are deemed by us to be a manifestation of defendant’s will to terminate plaintiff’s employment on May 11, as it had a right to do. Plaintiff’s right to compensation then and there came to an end. Accordingly, plaintiff was not entitled to recover for money not paid her during the next five days, and the trial court properly entered judgment against her.

We do not reach defendant’s contention that sick leave compensation did not constitute “wages” under the cited statute.

The judgment should be affirmed and it is so ordered.

RUDDY, P. J., and WOLFE, J., concur.

ANDERSON, J., not participating.


author: HOGAN, Judge.

text:
    Dick Harry ELLIOTT, Appellant, v. William DARBY and Otis J. Reser, d/b/a Darby-Reser Motor Co. and Federated Mutual Implement and Hardware Insurance Company, Respondents.
    No. 8222.
    Springfield Court of Appeals. Missouri.
    Sept. 10, 1964.

      Clyde G. Meise, Mitchell & Meise, Kansas City, for appellant.
    Russell D. Jacobson, Max W. Foust, Kansas City, for respondents.
   HOGAN, Judge.

This is an appeal from an order of the Industrial Commission denying compensation to the appellant under the provisions of the Workmen’s Compensation Law. The trial court has affirmed the award, and the employee has appealed to this court as provided by Section 22, Article V, of the Constitution of 1945 and Section 287.490 (2). The Commission has found that the appellant did sustain a “personal injury by accident,” but that the injury did not arise “out of and in the course of his employment,” as required by Section 287.120 (1), to make the accident compensable.

In brief sketch, the facts are that the appellant — to whom we shall refer as the claimant — was, at the time of the accident in question, working for the employer as a mechanic, “service manager” and “parts manager.” The employer’s business was described as being “sales and service of new Ford cars and trucks and of used cars and trucks.” Although the claimant was employed principally as a mechanic, he also had certain supervisory duties and was employed as a welder; in addition, he was in charge of the employer’s wrecker service, which was operated on a 24-hour basis. By agreement with the employer, Mr. Elliott received one-half the charges made for wrecker calls, which he took at all hours, though the claimant’s normal working day ran from 7:30 A.M. to 5:30 P.M. It is apparent from the record that the claimant was a trusted employee and that he was left in charge of the business in the employer’s absence.

Some time prior to the summer of 1959, a number of townspeople, some of whom were customers of the employer, had formed a group known as the Osceola Boat Club. Apparently this club was never formally organized, and its activities were principally social in nature, though there is some indication that the members of the club were attempting to promote recreational and tourist activity along the Osage River at Osceola, where the employer’s business was located. The members of the club undertook to construct a floating boat dock about this time, and there is evidence indicating that the dock, when completed, would be available for community use. The employer, however, was not a member of the boat club, nor, he testified, had he ever been approached or solicited for a contribution of funds or services toward construction of the dock.

About the middle of August 1959, Mr. Elliott was approached by one of the members of the boat club, a Mr. Toalson, and was asked if he would be willing to assist in the construction of the proposed boat dock by welding some large barrels (actually 50-gallon oil drums) together as pontoons upon which the dock would float. We gather from the record that the actual process of construction of these pontoons involved spot welding the barrels end-to-end in units of six barrels, and then welding triangular pieces on top of the assembled unit as braces, to which the wooden floor of the dock could be attached. Mr. Elliott testified that he considered the construction of the dock to be a “community deal,” and understood that neither he nor the employer would receive any compensation for the work he was to do. It also appears that he had never been given permission to donate the employer’s services without compensation, and that the employer, at least initially, had no knowledge that Mr. Elliott had undertaken this particular project.

A Mr. Gordon, engaged “in the feed business” in Osceola, furnished 27 or 28 of the large barrels, and about the middle of August, working on the employer’s premises, and using at least in part machinery and materials belonging to the employer, Mr. Elliott began work on the pontoons. The record indicates that he worked “three or four” mornings before regular working hours and up until 8:00 A.M., and “one or two nights a week,” on the project for about two weeks before he sustained the accident in question, and that part of the dock had been completed and placed in the water by August 31, when Mr. Elliott was injured. During this two-week period, the barrels were stored on the employer’s premises, and the record makes it clear that Mr. Reser (the managing partner of the business) was aware of what Mr. Elliott was doing. Reser’s testimony, which is somewhat equivocal, was that he “ * * * assumed at that time that he [Elliott] was doing the welding when he was not employed by me during regular hours,” and that he had “ * * * said nothing to him [Elliott] about it as pertaining to him, to do it or not to do it.” Mr. Reser testified, and advised the referee, that “you would have to assume that I either approved or didn’t disapprove because I would have had the authority to tell him to quit,” but also stated that “it was my understanding that he [Elliott] was doing the work. * * * I didn’t take the job.” Mr. Reser did say —and the appellant lays much stress on the statement — that he felt he was contributing Mr. Elliott’s services, and “* * * I think he feels that way.”

In any event, on the afternoon of August 31, near the end of the work day, Mr. Elliott undertook to finish the project There was “no other work in the shop at the time,” so, according to the claimant, Reser said “that I had a lot of welding to do * * * [and] had better get started on it,” although, as Reser recalled, he said “if you are going to do the welding, you just as well get started on it so you can get the job completed.” But however that may be, the claimant returned to work shortly after 6:00 P.M. to finish the welding. He had been working only a short time when one of the barrels exploded, apparently from “the gas that had built up in it,” and he sustained severe and disabling injuries.

As material here, the findings of the Industrial Commission were as follows:

“ * * * Neither Elliott or Reser
were members of the Boat Club. The record is clear that Reser’s prior consent, permission or acquiescence was not secured in connection with the project.
“In any event, the oil drums were subsequently delivered to Reser’s premises. That Reser knew of this and Elliott’s subsequent work thereon is abundantly clear. With the exception of one 30 minute period, Elliott’s labors on building the dock were performed before and after his usual, ordinary and customary working hours. In these after-hour labors he was not paid by Reser. In building the dock Elliott used an electic welder belonging to himself and an acetylene welder belonging to Reser. Reser furnished all the welding rods used on the job albeit unknowingly. On the evening of August 31, 1959, Elliott was working after hours on the docks. While so engaged, one of the oil drums exploded and he sustained serious injuries.
“The evidence indicates that Reser had not received and had no reason to expect (not having been a party to Elliott and Toalson’s agreement) any advertising or publicity in connection with building or erecting the boat dock.
“It is the employee’s contentious, if we correctly understand his position, that Reser’s failure to actually prohibit Elliott from working on the dock on the employer’s premises (after knowledge of the same) amounted to a ratification, condonation or acquiesence which adopted Elliott’s acts in such a manner as to cause the accident to arise out of and in the course of the employment. Or alternatively, that the benefit of Elliott’s labors inured to the good will of Reser’s business in such a way as to achieve the same legal effect.
“We find and believe that at the time of the accident the employee was not performing any work required by his employment; that he was not performing any duty of his employment; that he was not engaged in doing something reasonably incidental thereto and that his accident did not, therefore, arise out of and in the course of his employment.”

In their briefs, both parties vigorously argue the effect of the evidence. The appellant maintains that the injury must be said to have been sustained while he was acting in the course of his employment, because: 1) he was under 24-hour call, at least for wrecker service; 2) he sometimes acted in a “managerial” capacity; 3) he had received instructions from Mr. Reser to finish the welding project, at the time he was injured; 4) the employer testified in substance (as indeed he did) that both he and the claimant believed the claimant’s services were being donated toward completion of the boat dock; and 5) Mr. Reser retained the right to control the means and manner in which the work was being done, and, in Reser’s words, “ * * * I would have had the authority to tell him to quit, ” but instead he agreed to and encouraged the performance of the work by the claimant. The force of this evidence, as we understand the claimant, is to demonstrate conclusively that the employer had temporarily enlarged the scope of the claimant’s employment to include the welding project, and since the claimant was performing an act for the mutual benefit of the employee and employer, the accident must be considered compensable.

Respondents, on the other hand, argue that the activity in which the claimant was engaged was clearly outside the scope of the employment contract, because: 1) the claimant received no pay for the welding; 2) the work was different from that in which he ordinarily engaged; 3) almost all the welding was done outside regular working hours; 4) the claimant was never directly ordered or authorized to do the welding, nor was he given any instructions as to how to do it; 5) Mr. Elliott had no authority to undertake the welding project on behalf of the employer; 6) the employer had no control over the claimant while he was doing the welding; 7) both the claimant and Mr. Reser regarded it as being a donation of the claimant’s skill on his own, but not his employer’s, behalf.

The very tenor of the arguments here and the duplication of authority in the briefs illustrate the dilemma with which one is confronted in attempting to apply general principles to a specific factual situation in a case of this kind. Though of course the general question to be resolved is whether the claimant’s injury arose “out of and in the course of [his] employment, ” as required by Section 287.120(1), even a superficial examination of the authorities shows that a determination whether an injury comes within the quoted phrase usually involves the resolution of a factual, rather than a legal, question, and often nothing more precise and illuminating can be said than to state that each case must be decided upon its own particular facts. Heaton v. Ferrell, Mo.App., 325 S.W.2d 800, 803-804. In the case at bar, the testimony of the only two well-informed witnesses to the facts — the claimant and his employer— is often inconsistent and somewhat contradictory. It is readily apparent from the record that, upon the evidence, conflicting inferences were permissible. In such a case, the Commission has a choice, just as it does with the credibility of witnesses, and we must view the record in the light most favorable to the Commission’s award.

We agree that the employer’s liability is not limited to those duties or that work which the employee was originally engaged to perform, or to the employee’s usual work; there is no doubt that the contract of employment may be enlarged or broadened if the employer directs the performance of additional duties or acts outside the usual scope of employment. Generally speaking, however, injuries sustained while the employee is acting in his own interest, or in the interest of a third person, are not compensable, 58 Am. Jur., Workmen’s Compensation, Section 235, pp. 740-741, and the mere fact that permission is given to the employee to perform an act or engage in additional activity does not necessarily broaden the scope of employment, even though such permissive activity may bear some relation to the employment. In the case at hand, the employer was not present when Mr. Toalson first secured the claimant’s agreement to weld the pontoons. Although at one point in the record Mr. Reser did answer affirmatively when he was asked if he felt he was contributing Mr. Elliott’s services, at another point he said that “ * * * it was assumed by me that he [Elliott] was doing the welding when he was not employed by me during regular hours * * ” and Mr. Reser also stated that he never directed Elliott either to participate or not to participate in the boat dock project. He denied, at one point, that he had ever been solicited for or agreed to a donation of money, labor or materials toward the construction of the dock, and he expressly denied that Mr. Elliott had any authority to make such a donation. It was for the Commission to decide what inference was to be drawn from the evidence presented, Shrock v. Wolfe Auto Sales, supra, n. 2, 358 S.W.2d at 815, and we think the Commission might reasonably have concluded that Mr. Reser merely tolerated the claimant’s participation in the dock-building project, without actually approving or encouraging it, and without giving any specific direction to the claimant.

As an ancillary proposition, the appellant quotes from Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454, and urges upon this court that since the claimant was performing an act for the mutual benefit of the employer and employee, the injury sustained should he held compensable, even though the welding project involved activity outside Mr. Elliott’s regular duties. The respondents, again arguing in terms of the proof presented, contend that the boat dock project cannot reasonably be said to have benefited the employer even indirectly. In this connection, the Commission has found in its conclusions of law that “ * * * the speculative and intangible benefits that the employer might or could obtain from the creation of good will by virtue of Elliott’s construction of the boat dock are insufficient to sustain the proposition that the relationship of master and servant existed at the time of the rendition of such services or, alternatively, that an accident sustained in the rendition of such services arose out of and in the course of the employment. * * * ”

It is true that the nature or quality of an act causing an injury is an important consideration in determining the compensa-bility of the injury, particularly in those cases where the employee is engaged in some permissive activity outside his regular duties. It is sometimes said that if in fact such permissive activity serves the interest of the employer, or is engaged in for the mutual benefit of the employer and employee, then an injury arising out of such activity may be considered compensable. This is one aspect of the so-called “indirect benefit” or “mutual benefit” rule. But the fact that the employee’s activity may incidentally result in some benefit to the employer does not necessarily bring it within the scope of the employment. 58 Am.Jur., Workmen’s Compensation, Section 239, p. 744. There is, to be sure, some indication upon this record that some of the members of the Osceola Boat Club were past or potential customers of the Darby-Reser Motor Company, and we assume it might be argued that, in a small community, any gratuitous service performed on behalf of the employer could create some public “good will” in the broadest sense. However, there was no advertising of the employer’s contribution to the project, and the evidence is susceptible to the interpretation that the primary purpose of the boat club was to engage in social activity, and not to promote business activity in the community. The employer at one point denied that he was interested in the boat club or the dock project, even indirectly. Certainly the claimant was not engaged in activity which the employer had encouraged in order to develop the employee’s skill, as was true in the Wamhoff case, supra, 354 Mo. at 718, 190 S.W.2d at 919 [8], nor was he cultivating the good will of a prospective customer pursuant to specific instruction, as was the case in Ohlsen v. J. G. Dill Co., 222 Minn. 10, 23 N.W.2d 15, 18-19 [3] [4], nor can it be said that he was engaged in some humanitarian or emergency mission, as was the case in Graves v. Central Electric Power Cooperative, supra, n. 4, 306 S.W.2d at 504, and Scott v. Rhyan, 78 Ariz. 80, 275 P.2d 891, 893-894 [3-6] [7-8], It is true that some courts purport to find an “indirect benefit” in activity of the employee which apparently has served no purpose of the employer other than to promote the good will of the general public, 1 Larson, op.cit., Section 27.22(b), pp. 411-412, but in our view, the “concurrent benefit” principle cannot be applied without limitation. Eventually, the indirect benefit to the employer becomes so tenuous as to be imperceptible, see 1 Larson, op.cit., Sections 20.20, pp. 296-297, and 27.22(b), pp. 411-412; Gaumer v. Industrial Commission, supra, 94 Ariz. 195, 382 P.2d at 675 [5], and we agree with the Commission that in the present case any benefit which might have accrued to the employer because of the claimant’s participation in the boat dock project is so speculative and remote that the mutual benefit doctrine cannot be reasonably applied.

We have examined the record and we conclude that the Commission’s findings are supported by competent and substantial evidence and are not contrary to the overwhelming weight of the evidence. We therefore consider that the judgment should be affirmed, and it is so ordered.

RUAR.K, P. J., and STONE, J., concur.

      . Chapter 287, RSMo (1959), V.A.M.S. All references to statutes and rules are to RSMo (1959), V.A.M.S. and V.A.M.R., unless otherwise noted.

      . Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 815-816 [3-5]; Monical v. Armour and Co., Mo., 307 S.W.2d 389, 394 [6, 7]; Greer v. Missouri State Highway Department, Mo.App., 362 S.W. 2d 773, 779 [5, 6]; Sams v. Hayes Adhesive Co., Mo.App., 260 S.W.2d 815, 819 [3, 4] ; 100 C.J.S. Workmen’s Compensation § 763(5), pp. 1202-1204.

      . Snowbarger v. M.F.A. Central Cooperative, Mo., 349 S.W.2d 224, 225-226 [1, 2]; Brown v. Anthony Manufacturing Co., Mo., 311 S.W.2d 23, 27 [1, 2]; Greer v. Missouri State Highway Dept., supra, 362 S.W.2d at 779 [5, 6]; Heaton v. Ferrell, supra, 325 S.W.2d at 802 [1].

      . Graves v. Central Electric Power Cooperative, Mo., 306 S.W.2d 500, 504; Dershowitz v. Ford Motor Co., 327 Mich. 386, 41 N.W.2d 900, 902-903 [4]; Weidenbach v. Miller, 237 Minn. 278, 55 N.W.2d 289, 296-297 [1-3]; Stepan v. J. C. Campbell Co., 228 Minn. 74, 36 N.W.2d 401, 403 [2]; McAdams v. canale, 200 Tenn. 655, 294 S.W.2d 696, 699-701 [4]; 99 C.J.S. Workmen’s Compensation § 217, pp. 717-719.

      . This is, of course, subject to the qualification that employees who engage in acts ministering to their personal comfort, such as eating, drinking, washing, etc., in the time and space limits of their employment, do not ordinarily leave the course of their employment. See 1 Larson, Workmen’s Compensation, § 21, et seq., p. 297.

      . Stout v. Sterling Aluminum Products Co., Mo.App., 213 S.W.2d 244, 248 [9, 10]; Dunnaway v. Stone & Webster Engineering Corp., 227 Mo.App. 1211, 1216, 61 S.W.2d 398, 400; Gaumer v. Industrial Commission, 94 Ariz. 195, 382 P. 2d 673, 674-675 [3, 4]; State Compensation Insurance Fund v. Industrial Accident Commission, 43 Cal.App.2d 328, 110 P.2d 681, 682 [1, 2] ; Gibson v. Blower’s Paint Service, 140 Pa.Super. 216, 14 A.2d 154, 157-158.

      . Wamhoff v. Wagner Electric Corp., supra, 354 Mo. at 718-719, 190 S.W. 2d at 919 [9]; Gaumer v. Industrial Commission, supra, 94 Ariz. 195, 382 P.2d at 675 [5]; Robbins v. Jackson, 232 Ark. 658, 339 S.W.2d 417, 419-420 [1]; Smith v. Seamless Rubber Co., 111 Conn. 365, 150 A. 110, 111 [2, 3], 69 A.L.R. 856, 859; Farnham v. Labutis, 147 Conn. 267, 160 A.2d 120, 122 [3-7] ; Dershowitz v. Ford Motor Co., supra, 327 Mich. 386, 41 N.W.2d at 902 [4].


author: WADDILL, Commissioner.

text:
    Sue WHITEHOUSE, Appellant, v. R. R. DAWSON BRIDGE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 19, 1964.
    As Modified on Denial of Rehearing Oct. 2, 1964.
    Robert M. Spragens, Lebanon, for appellant.
    Richard E. Moorman, Leitchfield, for ap-pellee.
   WADDILL, Commissioner.

This is an appeal from a judgment upholding an order of the Workmen’s Compensation Board which dismissed appellant’s claim seeking compensation for the death of her husband, Arlo Whitehouse.

The Board found that Arlo, who was a bulldozer operator employed by appellee, died by drowning during a flash flood at the site of an arch culvert being constructed over the Big Clifty Creek by the appellee. The appellee’s foreman had dismissed the construction crew for the day but told Arlo to wait at the site to assist a mechanic who would arrive later. While waiting, Arlo emptied his pockets, jumped in the flooded creek and attempted to ride a large log. The log rolled and tipped him into the water, resulting in his death. The Board determined that in entering the water Arlo was not furthering any interest of his employer but, on the contrary, acted under an impulsive interest in playing with the log and, therefore, his death did not arise out of his employment. KRS 342.005.

Appellant contends that since Arlo died during the hours of his employment at a time he had no duties to perform, and since his death was attributable to the environment of the construction site, his jumping in the water did not constitute such a departure from his employment as to justify the Board in concluding that his death did not arise out of his employment. Appellant relies on certain language in Rex-Pyramid Oil Co. v. Magen, 287 Ky. 459, 153 S.W.2d 895. However, in that case we merely recognized that once an employee has returned to performing duties for his employer his prior departure from such duties does not militate against the recovery of compensation.

In the instant case the only reasonable conclusion is that Arlo was not performing or about to perform any duties for his employer when he drowned. The uncon-tradicted facts established such a departure from the employment as to preclude appellant from obtaining compensation from the appellee.

Even if we were to adopt the liberalized view of “horseplay” situations expressed in such cases as Ransom v. H. G. Hill Company, 205 Tenn. 377, 326 S.W.2d 659, we would still be impelled to uphold the denial of compensation in the instant case, because we believe Arlo’s conduct was not merely an insignificant antic but must be regarded as a substantial deviation.

The judgment is affirmed.


author: STEWART, Judge.

text:
    CONSOLIDATED TELEVISION SERVICE, INC., Appellant, v. Joseph J. LEARY et al., Appellees.
    Court of Appeals of Kentucky.
    June 12, 1964.
    Rehearing Denied Oct. 9, 1964.
    William E. Johnson, Darnell, Johnson & Burton, Frankfort, for appellant.
    Marion Rider, Frankfort, for appellee.
   STEWART, Judge.

Appellant, Consolidated Television Service, Inc., is a privately owned corporation engaged in the business of furnishing coaxial cable television service for profit to the residents of Frankfort and to persons in certain outlying areas. Appellees are the members of the Electric and Water Plant Board of Frankfort, a public corporation owned and operated for the benefit.of the people of Frankfort. We shall refer to ap-pellees as “the Board.”

Appellant does not own any easements or utility poles. It uses poles owned by local utilities to string its wires for furnishing the cable service in question. Appellant began business about 12 years ago, initially confining its operation to East Frankfort. Meeting with success, it attempted to expand and sought the right to use the utility poles of the Board in all portions of Frankfort This right had previously been granted to appellant’s only competitor, Community Service, Inc., hereinafter called “Community.” The Board refused general use of its poles but granted such a privilege in specified places, with the stipulation that appellant would not interfere with the operation of Community.

Appellant filed this action, asking for a mandatory injunction requiring the Board to permit it to use any and all poles owned by the Board in Frankfort and in the outlying areas where such are located. The Board then filed a motion for summary judgment supported by affidavits. After a hearing on the motion, the trial court sustained the motion. This appeal is from that ruling.

Appellant’s contention is that the Board’s action in refusing the use of its poles by appellant is arbitrary, discriminatory and unreasonable, since the Board permits its competitor to use the poles for the same purpose sought by appellant.

The record includes selected minutes of various meetings of the Board, detailing the inception of Community and the continuance of its relation to the Board. Two contracts with Community and a contract between the Board and appellant were filed herein. Certain affidavits were also made a part of the record. A summary of the pertinent facts taken from these writings follows.

When television began to be a popular form of entertainment in the late 1940’s, Frankfort, due to its topography and geography, was at a serious disadvantage in the reception of programs of all types. In 1951, the Board, seeking to make available a facility that would bring in clear visual images accompanied by acceptable audio, obtained the services of Radio Corporation of America to accomplish this end. The latter, after two years of experiment and the expenditure of much time and money in Frankfort, perfected a method by which multiple signals could be received through a single high antenna and distributed to individual users by means of coaxial cable.

The Board, induced by additional potential revenue that might be derived therefrom, determined to avail itself of the plan. However, it deemed it impracticable to engage in the actual operation and, for the attainment of this purpose and in order to take care of the maintenance problem and the management details, caused to be created a self-perpetuating, nonprofit corporation, known as Community Service, Inc.

On August 11, 1952, the Board entered into a written contract with Community, with respect to the completion, extension and operation of the proposed television distribution service. The Board undertook to complete and extend, at its expense, the project, and Community assumed the obligation of the actual operation and of later extensions of the system. It was further provided Community out of its receipts should reimburse the Board for its investment; and that title to the facility, including any additions thereto made by Community, should be and remain at all times in the Board.

The initial agreement was for a period of one year, with the right to an automatic renewal of it from year to year and with the power to terminate it on the part of either party on written notice. On September 30, 1955, the Board entered into a new contract with Community for a period of ten years. In addition to the terms and conditions heretofore recited, the new contract provided that no person, officer, member or director of Community should receive any dividends or profits from its operation, and that all sums realized, after deducting the necessary expenses and reserve for replacement, extension or alteration of the system, should he employed for charitable or religious purposes or for civic improvements in Frankfort or Franklin County.

On July 17, 1959, the Board executed a contract with appellant whereby the latter agreed to make television service available in certain specified areas in the city, not covered by Community, and the Board consented that it.might use its poles in these sections for such .purpose. This contract, provided upon termination that “all' equipment, wires and appliances on the poles used and useful in rendering such service shall revert to and become the property of the Board.” Shortly thereafter this suit was filed.

Appellant claims the Board has acted in an unreasonable and arbitrary manner, relying upon this language- from McQuillin, Municipal Corporations, Vol. 9, sec. 26.75, pp. 164-165, wherein it is stated:

“Municipal licensing authorities cannot unreasonably, arbitrarily or capriciously refuse a license or permit. * * * Nor can municipal authorities grant licenses and privileges to certain individuals and arbitrarily deny them to others, under like conditions.” (Emphasis supplied.)

The facts in the case do not disclose that the Board has ever held itself out to the public, expressly or impliedly, as engaged in the business of making its poles generally available for use to any person who might organize a business to distribute television programs by means of coaxial cable. Such a method, it is shown, was promoted by the Board as a source of new revenue to be derived from the sale of electric current required to activate television sets. In short, the record is clear that the Board pioneered in making available in the Frankfort community television signals by coaxial cable, even before such a plan was thought of by others; it was the first to put such a method in operation after it was proven to be feasible; and, having initiated the system and established it at considerable cost, it claims it must draw the line, as it cannot allow all others who may wish to engage in a similar enterprise to use its poles in an unlimited manner.

We have in this case a situation where permission is sought to continue an existing condition while a new one of the same type is asked to be forbidden. It has been held that the hardship of taking away an established use may well' be regarded as greater than that of preventing a similar new use-That is to say, it is reasonably just to classify between existing use and proposed use of the same kind.

In the case of Hines v. Jenkins, 237 Ky. 676, 36 S.W.2d 387, the City of Bowling-Green granted permits to place 51 gasoline pumps on its sidewalks. Jenkins and another person (not named) desired to install-two gasoline pumps in front of their place of business to be connected with a tank or tanks beneath the sidewalk. A permit was-applied for but refused because, previously thereto, the city had adopted a resolution h> grant no further permits for such a purpose.

When sued, the city was perpetually enjoined from interfering with the installation; of the gasoline pumps, the circuit court; holding the city by refusing a permit was. discriminating against Jenkins and the other person. Upon an appeal, this Court reversed, stating: “The city * * * cannot ordinarily make distinctions between, different classes of its citizens, but not every classification is invalid. For example, classifications based upon time or existing' conditions have frequently been upheld.”

The recent case of Butler v. United. Cerebral Palsy of Northern Ky., Inc., Ky.,. 352 S.W.2d 203, dealt with the question, among others, of determining if public assistance could be confined only to schools, engaged in the education of exceptional children, at the time of the enactment of legislation making such assistance available, with the result that children who might attend other similar schools established thereafter would not be provided with the same benefit.

That opinion, after pointing out that classifications based upon their existing extent have been frequently upheld, determined it was not unreasonable to restrict public assistance “to existing schools already performing the type of service” under consideration in that case.

Under the facts recited, and the principles of law applicable thereto, we believe the Board’s refusal to grant appellant the right to use its poles did not necessarily result in unconstitutional discrimination.

Appellant contends the affidavit of O. R. Harrod, filed in support of the Board’s motion for summary judgment, was inadmissible because it expressed interpretations and conclusions of the affiant and was not the best evidence. The affidavit detailed the reasons for the creation of Community and appellant asserts the trial court followed the conclusions stated in the affidavit in reaching its decision. Appellant maintains the minutes of the Board’s meetings and the contracts between the parties, both of which were in the record, were the best evidence of the events about which O. R Harrod attempted to swear.

Whether or not the affidavit was admissible is of little importance here, as the facts contained in the affidavit were also in the other writings made a part of the record. How can it be said which was drawn upon by the trial court in the decision it made?

Appellant next asserts that, if Community is an arm or adjunct of the Board, then the action of the Board in supervising, maintaining and operating a television cable service exceeds the power and authority granted to the Board by statutes governing it. Thus appellant argues that the contract between the Board and Community is void. Appellant then says: “If said contract is void, or voidable, then there can be no valid reason for the denial of the use of the poles, to appellant.”

This is specious reasoning. Even if the contract with Community is void or voidable, the Board is under no duty to lease its poles to anyone. This Court has no. power to compel it to allow anyone, even appellant, to use the poles. Since the question here is whether appellant can compel the Board to allow it to use the poles, there-is no need to discuss the authority of the Board to contract with Community.

Wherefore, the judgment is affirmed.


text:
    BLUE GRASS STATE TELEPHONE COMPANY, a Kentucky Corporation, Appellant, v. PUBLIC SERVICE COMMISSION of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    May 15, 1964.
    As Modified on Rehearing Oct. 9, 1964.

      Louis Cox, James M. Honaker, Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., J. Gardner Ashcraft, Asst. Atty. Gen., Allen Prewitt, Sr., Frankfort, for appellees.
   WADDILL, Commissioner.

The primary issue presented by this appeal is whether the Public Service Commission (hereinafter referred to as Commission) properly refused to grant the Blue Grass State Telephone Company (hereinafter referred to as Blue Grass) a certificate of convenience and necessity to operate a telephone system in the City of Jenkins and its environs.

The previous owner of this system having placed it in receivership, the United States District Court, on December 6, 1961, directed that its assets be sold to Continental Telephone Company upon a bid of $120,000. On January 11, 1962, these assets were transferred to Blue Grass, a Kentucky corporation and a subsidiary of Continental Telephone Company, by a bill of sale reciting that the purchase price was $120,000.

On December 19, 1961, prior to taking possession of the telephone system, Blue Grass filed with the Commission an application for a certificate of convenience and necessity to operate this system under KRS 278.020. By its final order issued September 11, 1962, the Commission refused to grant the requested certificate. This order was upheld by the Franklin Circuit Court.

The question of whether the Commission has jurisdiction to approve or disapprove an involuntary sale was not raised before the Commission. The sole issue for it to decide was whether the operation of this system by Blue Grass was in the public interest.

The Commission determined that the depreciated original cost of this system was $25,366.90, and its order shows that it refused to issue the certificate of convenience and necessity solely because of the disparity between this cost basis and the sale price paid by Blue Grass. It assumed that the price paid would have to be considered as a determining factor in establishing a rate base at some later date.

The Commission apparently misinterpreted our holding in Lexington Telephone Co. v. Public Service Commission, 311 Ky. 584, 224 S.W.2d 423, wherein we held that under the facts presented the capital structure of the utility could not be completely disregarded in establishing a rate base. This does not mean that the Commission has no discretion in setting the rate base. If it is established that the price paid is grossly excessive or that the facilities purchased are not entirely usable, then the rate base should be adjusted accordingly. For instance, we held in the recent case of Fern Lake Co. v. Public Service Commission, Ky., 357 S.W.2d 701, that because facilities were shown to be more than adequate, the Commission properly excluded their cost from the rate base. Since, in the instant case, the Commission was not asked to approve an increase in rates and since, as indicated herein, they are not inflexibly bound by the purchase price whenever an increase in rates is considered, the holding of the Commission was premised on an improper conclusion regardless of whether $120,000 was an unreasonable price.

In Public Service Commission v. Cities of Southgate, etc., Ky., 268 S.W.2d 19, we held that the Commission has the responsibility of determining that the purchaser of an existing utility is ready, willing and able to continue providing adequate service. In light of this rule, we believe the following facts are relevant: Blue Grass has acquired from its predecessor a 20-year franchise issued January 2, 1951, by the City of Jenkins; it now owns the existing facilities (admittedly antiquated) and has operated them since January 11, 1962, providing a needed service to the people in this area and, at the time of this hearing, it had a firm offer for adequate financing to modernize this system. Upon the record before us we conclude that it was in the public interest for the Commission to approve the acquisition of the facilities by Blue Grass and issue it a certificate of convenience and necessity pursuant to KRS 278.020(3) and that the Commission acted unlawfully and unreasonably in failing to do so.

By its application and amended application, Blue Grass also sought the Commission’s approval to issue common stock, to adopt the authorized rates of its predecessor and to borrow $350,000 for proposed construction and to convert to automatic (dial) operations. We express no opinion with respect to the approval or disapproval of these requests each of which should be passed upon by the Commission. When this case is remanded they will be considered upon the existing record and any change of conditions subsequent thereto.

The judgment is reversed with directions to remand the case to the Commission for entry of an order granting Blue Grass a certificate of convenience and necessity and for further proceedings not inconsistent with this opinion.


author: MONTGOMERY, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Mary Duffy MARTIN et al., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.
    As Modified on Denial of Rehearing Oct. 2, 1964.

      Edward J. Hogan, Louisville, for appellant.
    Herschel Wooldridge, Louisville, for ap-pellee Mary Duffy Martin.
    Raymond C. Stephenson, Louisville, for appellee Booker Wright.
   MONTGOMERY, Judge.

Appellee Booker Wright recovered judgment for $400 against appellee Mary Duffy Martin as damages arising from an auto accident. By third party complaint, appellee Martin sued State Farm Mutual Automobile Insurance Company, her alleged insurance carrier, to recover for the judgment awarded against her, plus an attorney fee of $500. On a trial without a jury, judgment was rendered against appellant in the sums sought. Appellant’s motion for an appeal was sustained.

Appellant asserts that the policy issued was canceled because of a “material” misrepresentation. The case turned on the single issue of fact as to whether appellee Martin had received a letter of cancellation or had knowledge of cancellation of an insurance policy issued to her and Grover W. Skaggs by another insurance company.

On March 11, 1961, appellee Martin purchased an automobile liability insurance policy from an agent of the appellant. She made the initial payment of $13. On the next day her car was involved in an accident with one owned by appellee Wright.

Wright sued. Appellee Martin duly notified appellant, who immediately undertook to defend her according to the terms of the policy. The defense included the filing of an answer denying liability and attendance at the taking of appellee Martin’s deposition by counsel for appellee Wright.

On June 15, 1961, appellee Martin received a letter from appellant, informing her that her policy had .been rescinded as of its date of application. The assigned reason for cancellation was that she had answered “No” to the following question: “Has any insurer cancelled or refused to issue or renew, or given notice that it intends to cancel or refuse automobile insurance or any other insurance similar to that applied for, to the applicant or any member of his household within the past three years ? ”

Appellant claims that this constituted a material misrepresentation under KRS 304.-656, since automobile insurance coverage had in fact been terminated by another insurance company. KRS 304.656 is as follows:

“All statements or descriptions in any application for an insurance policy or in negotiations therefor, by or in behalf of the insured, shall be deemed to be representations and not warranties. Misrepresentations, unless material or fraudulent, shall not prevent a recovery on the policy.”

An employee of the Michigan Mutual Liability Insurance Company testified for appellant that he had not been able to produce any policy that had been issued to Mary D. Martin or to her son, Grover W. Skaggs, in 1959, but that he had a record that Policy No. 11-3-660523 issued to “Mary D. Martin and/or Grover Skaggs” had been canceled on November 5, 1959, by unregistered mail. He said that the file containing the policy had been lost.

Appellee Martin and her son, Grover W. Skaggs, admitted having had the prior policy of insurance but denied having received any notice of cancellation or having-had any knowledge of cancellation. They said that the policy had lapsed for nonpayment of an installment on the premium.

The trial judge found as a fact that the testimony of the employe of Michigan Mutual (unsupported by substantial documentation) that the notice of cancellation had been mailed was rebutted by the testimony of Mrs. Martin and her son that they had not received any notice. See Globe Indemnity Company v. Daviess, 251 Ky. 442, 65 S.W.2d 456. In substance the judge found that the notice had not been mailed; ergo, there had been no cancellation. There having been no cancellation of the Michigan Mutual policy, there was no misrepresentation in the application for the State Farm policy.

Judgment affirmed.