author: RUDDY, Judge.

text:
    In re ESTATE of Isaac T. BIERMAN, Deceased. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Claimant and Petitioner, Appellant, v. Leonard L. BIERMAN and Ruth L. Kalmon, Executors, Respondents.
    No. 32495.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.

      Kenney, Reinert & Hespen, St. Louis, for appellant.
    Karol A. Korngold, St. Louis, for respondents.
   RUDDY, Judge.

Hartford Accident and Indemnity Company, hereinafter referred to as Hartford, filed its claim in the St. Louis County Probate Court against the Estate of Isaac T. Bierman. The first claim filed was not served on the executors. A subsequent claim was filed by Hartford, denominated “Supplemental Claim,” and copies thereof were served on the executors on July 10 and 14, 1963.

The executors moved to dismiss the claim in the Probate Court on the grounds that it had not been filed within the time permitted by law for the filing of claims, and that it had not been properly served on the executors. The Probate Court sustained the motion, whereupon Hartford took an appeal to the St. Louis County Circuit Court. There the executors moved to dismiss the claim on the ground that the court did not have jurisdiction for the reasons asserted in the Probate Court. The court sustained the motion and after Hartford’s motion for new trial had been overruled it appealed to the Supreme Court of Missouri. The Supreme Court concluded that the matters attempted to be raised by Hartford were not properly before it and did not afford a sufficient basis for invoking its appellate jurisdiction. The cause was transferred to this court. In Re: Bierman’s Estate, Mo., 396 S.W.2d 545.

Isaac T. Bierman died on August 28, 1960 and letters testamentary were granted on September 9, 1960, and the first notice of the grant of letters was published September 16, 1960.

On May 22, 1963, Hartford filed its claim in the amount of $1,672.29 in the Probate Court of St. Louis County against the estate of the decedent. No service of this claim was had on the executors of the estate. On July 5, 1963, Hartford filed a '“Supplementary Claim.” As stated, a copy of this claim was served on the executors of the estate of Isaac Bierman on July 10 and July 14, 1963, by the Sheriff of St. Louis County.

On December 24, 1947, Hartford executed a bond in the sum of $2000 in favor of Alton and Eastern Railroad Company, et al, wherein it guaranteed payment by the Principal on the bond, Compressed Steel Corporation, of freight charges incurred by Compressed Steel Corporation.

The claim of Hartford is based upon an indemnity agreement executed on December 24, 1947, wherein Isaac Bierman, agreed in consideration of Hartford executing the aforesaid bond, to hold Hartford harmless from any loss it may sustain or incur by reason of having executed the bond.

In the claim filed in the Probate Court by Hartford it is alleged that on or about June of 1962 the obligee, under the said bond, made claim against the Compressed Steel Corporation, the Principal on the bond, and against Hartford, the surety on the said bond, in the amount of $1,672.29. Demand was made upon the Compressed Steel Corporation to pay this claim and, upon the failure of said Principal to pay the claim, it was paid by Hartford. It is further alleged that as a result thereof it had sustained a loss of $1,672.29 which has not been paid to it by the estate of Isaac Bierman, the indemnitor under the said bond, or by his heirs.

The indemnity agreement provided that its “ * * * covenants shall be jointly and severally binding upon the undersigned, (Isaac Bierman) their (his) respective heirs, executors, administrators, successors' and assigns.” (Parentheses added.) As heretofore stated Hartford filed its original claim on May 22, 1963, and on July 5, 1963 filed a “Supplementary Claim.” We find that the supplemental claim was in proper form and duly verified and was properly served upon the executors.

Hartford’s liability to the obligee under the bond did not take place until June of 1962, at which time Hartford paid the claim of the obligee. Hartford’s supplementary claim was not filed until July 5, 1963. One of the grounds assigned in the executors’ motion to dismiss, which was sustained by the Probate Court, was that the claim had not been filed within the time permitted by law for the filing of claims. The question for determination is whether the claim is one that falls within the provisions of Section 473.360 RSMo 1959 V.A.M.S.

We quote the provisions of the aforesaid section pertinent to the claim before us:

“1. Except as provided in sections 473.367 and 473.370, all claims against the estate of a deceased person, other than costs and expenses of administration and claims of the United States and tax claims of the state of Missouri and subdivisions thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate court within nine months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the executor or administrator, the heirs, devi-sees and legatees of the decedent. No contingent claim based on any warranty made in connection with the conveyance of real estate is barred under this section.” (Emphasis added)

We are not concerned with the matters contained in Sections 473.367 and 473.370.

Pertinent to a discussion of the claim involved here are the provisions of Section 473.390 RSMo 1959 V.A.M.S. “Contingent claims which cannot be allowed as absolute debts shall be filed nevertheless in the court and proved. If allowed as a contingent claim, the order of allowance shall state the nature of the contingency. If the claim becomes absolute before distribution of the estate, it shall be paid in the same manner as absolute claims of the same class. In all other cases the court may provide for the payment of contingent claims in any one of the following methods: * * (We omit the methods of payment of contingent claims.)

It will be noted that the obligation of Hartford under the bond did not accrue and become absolute during decedent’s lifetime or during the nine months after the first published notice of letters testamentary.

Hartford’s bond and decedent’s indemnity agreement were operative and in full force at the time of Isaac Bierman’s death and under the terms of the indemnity agreement liability was not terminated or extinguished by reason of Isaac Bierman’s death. United States for Use and Benefit of Wilhelm, Trustee, et al. v. Chain, Executrix, 300 U.S. 31, 57 S.Ct. 394, 81 L.Ed. 487; Elms Realty Co. v. Wood, 285 Mo. 130, 225 S.W. 1002; and, Finney v. State, 9 Mo. 227. The executors, by force of the provisions of the agreement, were liable for the performance of the obligation set forth in the indemnity agreement, provided Hartford filed its claim timely. The primary question for determination is whether it was necessary for Hartford to file a claim within the nine month period provided in the non-claim statute, Section 473.360, supra.

Did Hartford have a contingent claim within the provisions of the non-claim statute? We think it did have such a claim. In making this determination we are aware that we are not considering a claim which was not due at the time of decedent’s death or within the non-claim period and which was payable at a future day. Section 473.-383, RSMo 1959, V.A.M.S.

In the case of Howard’s Estate v. Howe, 344 Mo. 1245, 131 S.W.2d 517, l. c. 519, the Supreme Court said: “ * * * A contingent claim is one where the liability depends upon some future event, which may or may not happen, and therefore makes it now wholly uncertain whether there will ever be a liability. The contingency does not relate to the amount which may be recovered, but to the uncertainty whether any amount may ever be recovered. * * * ” For the same definition of a contingent claim see: In Re Franz’ Estate, Mo., 245 S.W.2d 1, l. c. 7; Elms Realty Co. v. Wood, supra, l. c. 1005; Stevens v. Stevens, 172 Mo. 28, 72 S.W. 542; Beckers-Behrens-Gist Lumber Co. v. Adams, Mo.App., 311 S.W.2d 70; and, Maus, Probate Law and Practice, Volume 4, Section 921, p. 209 and cases therein cited.

Applying the aforesaid definition to the instant indemnity agreement, we find that liability depends upon the happening of a future event, namely; default in payment by Compressed Steel Corporation of freight charges due the obligee and Hartford’s payment of said charges. Liability under the indemnity agreement depended on whether Compressed Steel Corporation ever defaulted in the payment of the freight charges due the obligee. If Compressed Steel Corporation paid all the freight charges Hartford would never be called upon to make any payment. Therefore, there would never be any liability under the decedent’s indemnity agreement. At the time of decedent’s death and during the nine month period under the non-claim statute it was not certain that the Compressed Steel Corporation would default in the payment of freight charges; nor was it certain that it would pay all freight charges to the obligee when due. Therefore, default in the payment of freight charges was a future event which may or may not occur; thus, liability under the indemnity agreement was wholly uncertain. Liability could not arise until the contingency had happened. It may never arise. This served to create a contingent claim in favor of Hartford and against the estate of the deceased indemnitor.

The following cases, Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; State ex rel. Patterson v. Tittmann, 134 Mo. 162, 35 S.W. 579; Finney v. The State, 9 Mo. 227; Miller v. Woodward et al, 8 Mo. 169; and, Leavenworth Savings & Trust Co. v. Newman, D.C.Mo., 52 F.2d 813, were actions or claims against decedents’ estates or distributees seeking recovery under guaranty or indemnity agreements similar to the one in this case and liability did not occur or accrue until after the death of the guarantor or indemnitor and after the expiration of the period for filing claims under the non-claim statutes. The courts held in these cases, either, impliedly or directly, that the claim was a contingent claim. The claims in the cited cases were similar to the instant claim and therefore these cases support the conclusion we have reached.

The non-claim statute, Section 473.360, supra, in the New Probate Code, enacted into law in 1955, included contingent claims within its provisions for the first time. This statute, passed in 1955, and as since amended, expressly provides that contingent claims be filed within nine months after the first published notice of letters testamentary or be forever barred against the estate, the executor or administrator, the heirs, devisees and legatees of the decedent. Contingent claims were not included in the non-claim statutes in force prior to the enactment of the New Probate Code in 1955. The decisions construing the prior non-claim statutes held that the statutes only barred ordinary claims, but not demands which arise where the liability under the contract is a contingent one. It was held in the cases that under the prior statutes the period of limitation did not begin to run until the liability under the contingent contract became fixed by the happening of the contingency. Kimpton v. Spellman, supra; Howard’s Estate v. Howe, supra; Binz v. Hyatt, 200 Mo. 299, 98 S.W. 637; State ex rel. Patterson v. Tittmann, supra; Morgan v. Gibson, 42 Mo.App. 234. In Maus, Probate Law and Practice, Volume 4, Section 921, p. 210, it is said: “Prior to the 1955 Code the statutes of non-claim did not bar a contingent claim. * * * ” In the Committee Comment following Section 473.360, supra, is the following “ * * (2) it expressly bars contingent claims other than those based on warranties in conveyances, whereas such claims are not barred under the present law (Kimpton v. Spellman, 351 Mo. 674, 675, 173 S.W.2d 886); * * *.” It is the purpose of the New Probate Code to provide a speedy method for administering a decedent’s estate, to establish a time after which claims are forever barred against the estate, the executor or administrator, and the distributees, and to broaden the jurisdiction of probate courts to accomplish said purposes. North v. Hawkinson, Mo., 324 S.W.2d 733, l. c. 736; Steele v. Cross, Mo., 366 S.W.2d 434. It is evident that the drafters of the New Probate Code and the legislature determined it was as important that contingent claims be filed for allowance as that absolute claims should be so filed. This was done, no doubt, so that provision could be made for them before the estate was settled and it is apparent that the legislature had in mind that contingent claims be filed so that the executor may have an opportunity to investigate the merits of the claim. No particular harmful results are incurred by claimant from barring contingent claims if not presented within the time prescribed by the statute than results from barring absolute claims. This is true when we realize that Section 473.390, supra, gives protection for the payment of the contingent claim by a retention of assets in the estate or by other methods of payment.

It is the purpose of the non-claim statute in the New Probate Code to terminate all claims, whether due, not due, or contingent. Non-claim statutes have been held to be mandatory. Clarke v. Organ, Mo., 329 S.W.2d 670, 675. In view of the all inclusive terms of the non-claim statute, Sections 473.360 and 473.390, supra, we hold that Hartford was required to file and prove its contingent claim within nine months after the first published notice of letters testamentary, and having failed to so file, it was barred from filing the claim in the Probate Court when it became absolute.

However, Hartford contends that the Probate Court and the Circuit Court refused to recognize the applicability of the savings clauses of the New Probate Code as enacted in 1955, which in effect provide that no act done in any proceeding commenced before the New Probate Code took effect and no accrued right shall be impaired by the provisions of the New Probate Code. We fail to see the applicability of the savings clauses to the instant claim. It is clear that Hartford’s present claim does not involve any proceeding commenced prior to the enactment of the New Probate Code nor, has any right accrued to it been impaired by the non-claim provisions of the New Probate Code. It is the position of Hartford that the indemnity agreement executed by the decedent, Bier-man, in 1947, has incorporated in it the non-claim statute in force and effect in 1947. It claims that under the non-claim statute in force in 1947 its claim would not be barred. Hartford had no vested right in the non-claim statute in force and effect in 1947. It has been held that the non-claim statutes do not substantively affect a claim or cause of action and that the legislature may lengthen or shorten the non-claim period and may otherwise alter or change its procedural effect. Rabin v. Krogsdale, Mo., 346 S.W.2d 58; Potts v. Vadnais, Mo., 362 S.W.2d 543. The aforesaid cases point out that the non-claim statutes relate to remedies only and do not impair substantive rights and, as has been held, the legislature may enact a non-claim statute applying retroactively to claims against estates of deceased debtors if a reasonable time is allowed after enactment. State ex rel. Whitaker v. Hall, Mo., 358 S.W.2d 845. And in the Hall case it is said: “ * * * ‘The legislature has the power to increase the period of time necessary to constitute limitation, and to make it applicable to existing causes of action, provided such change is made before the cause of action is extinguished under the preexisting statute of limitations.’ * * * ” (1. c. 850)

Hartford had an adequate means of enforcing its claim. The existing non-claim statutes do not impair any substantive right of Hartford. The indemnity agreement executed by the decedent was not subject to the non-claim statutes in force and effect in 1947. The savings clauses have no application to Hartford’s claim.

For the reasons heretofore given the order and judgment of the Circuit Court should be affirmed. It is so ordered.

WOLFE, P. J., and ANDERSON, J., concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Joel Robert DIXON, Plaintiff-Appellant, v. John M. KINKER, Defendant-Respondent.
    No. 32402.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.

      Hullverson, Richardson & Hullverson, St. Louis, for plaintiff-appellant.
    Niedner, Niedner, & Moerschel, St. Charles, for defendant-respondent.
   BRADY, Commissioner.

In this jury waived action the plaintiff alleged both primary and humanitarian negligence. The trial court found that the defendant was guilty of primary negligence in that he failed to yield the right-of-way, but also found the plaintiff was barred from recovery on that theory by his contributory negligence in failing to keep a vigilant lookout and also in entering the intersection when it should have been apparent to him that a collision would ensue. The trial court also found for the defendant upon plaintiff’s pleaded theory of humanitarian negligence. Plaintiff appeals.

It is first necessary that we dispose of two preliminary matters. The first of these arises from the fact that we took with this case defendant’s motion to dismiss this appeal on the grounds plaintiff failed to comply with Civil Rule 83.05(c), V.A.M.R. That motion is now for our decision. Defendant contends the “Statement of Facts” contained in plaintiff’s brief is not “The fair and concise statement of the facts * * * in the form of a statement of the facts relevant to the questions presented for determination. * * * ”, but consists merely of’ setting forth some, not all, of the answers given by certain of the witnesses to questions propounded by counsel. As such, defendant urges that plaintiff’s effort does not even constitute “ * * * a statement of testimony of each witness relevant to the points presented, * * * ” which is permitted under the rule providing that such a statement follows a narrative statement of the facts.

While the statement of facts found in that portion of the brief is not in the proper form, the brief does contain a proper statement of facts albeit in the wrong portion of the brief. Had the statement of facts found in plaintiff’s brief been viola-tive of the rule, that fact, coupled with its improper placement, would have weighed heavily in favor of dismissal. As the matter now stands, all that is before us is a brief wherein the statement of facts has been improperly placed. This error is not sufficiently grave to require dismissal. Defendant’s motion is overruled.

The second of these preliminary matters has to do with the rules of review in appeals from jury waived civil matters. These rules are too well known to require restatement. Plaintiff’s contention is that while we must view the evidence in the light most favorable to the defendant when considering whether or not plaintiff was contributorially negligent, we must then reverse ourselves and view that same evidence in the light most favorable to the plaintiff when considering plaintiff’s contention he was entitled to a verdict upon one or more of his pleaded allegations of humanitarian negligence. In stating this allegation of error the plaintiff cleverly words it in the following manner: “The Court erred in finding that plaintiff failed to make a sub-missible case under the humanitarian doctrine.” He then seizes upon the words “submissible case” and proceeds to argue that the evidence on that issue should be viewed in the light most favorable to the plaintiff. The fallacy in this argument is that plaintiff’s counsel misunderstands the trial court’s ruling. The actual judgment entered by the trial court was: “This cause having been tried, submitted and taken under advisement, the Court finds the issues in favor of the defendant, and it is ordered and adjudged that the plaintiff take nothing by his petition, and the defendant is discharged, with his costs. * * Since the trial court found “ * * * the issues in favor of the defendant, * * * ” it is obvious that it found the facts in accordance with that result; that is to say, it believed the defendant’s version of the facts. Our review of an appeal of this nature is de novo and we are to make our own findings of fact although we are given the privilege of deferring to the trial court’s superior opportunity to judge the credibility of the witnesses upon matters involving disputed testimony. In the instant case we come out with the same result regardless of which road we follow. The facts must be stated in the light most favorable to the defendant regardless of whether we do so because he was the prevailing party in the trial court or whether we do so because arriving at our own conclusion of facts, after granting deference to the trial court on issues involving the credibility of witnesses, we believe the facts to be in accordance with the defendant’s evidence. Since the defendant was the prevailing party and because we do believe the defendant’s evidence, the facts will be stated in the light most favorable to the defendant.

The facts pertinent to this appeal are that on the occasion of this collision plaintiff was driving eastwardly in the center or slightly to the right of center of Carr Street which is twenty-five feet wide at this point. The defendant was driving north-wardly about three feet east of the center of Lindenwood, a street which was fifty feet wide. There were no traffic controls at the intersection of these streets. Both streets were almost level although Carr went slightly downgrade and Lindenwood was slightly upgrade as each approached the intersection. There was a house located on the southwest corner of this intersection which sat back about fifteen feet from each street. Both streets were snow-packed and very slick with ice. The plaintiff’s automobile was equipped with snow tires which were several months old. There was no other traffic on either street.

The defendant’s speed was twenty miles per hour and the plaintiff was proceeding at about ten miles per hour. Defendant first saw the plaintiff when defendant was about fifty feet from the intersection. Plaintiff was then thirty feet away. The defendant immediately applied his brakes. He began to slide with his wheels locked and slid straight ahead into the intersection, decreasing his speed to about ten miles per hour at the time of impact. The plaintiff testified that when he reached a point ten to twelve feet west of the west curb line of Lindenwood, he looked to his right and saw the defendant. Plaintiff did not apply his brakes or change the course of his automobile and proceeded into the intersection and to the point of impact at the same speed he had been traveling. As the defendant slid, the front of defendant’s automobile struck the right rear side of plaintiff’s car when the front of that automobile was still five to ten feet from the east side of Lindenwood and when defendant’s automobile was ten feet north of the south curb line of Carr Street. After the impact plaintiff’s car went forward fifteen or twenty feet on Carr Street and into a telephone pole ten feet east of the east line of Lindenwood.

Defendant contends that a reasonable inference from his evidence supports the trial court’s finding the plaintiff was contributorially negligent in failing to keep a vigilant lookout and compels this court to reach the same result. The evidence upon which he relies is that although defendant saw plaintiff when plaintiff was thirty feet back from the intersection, plaintiff’s testimony was that he did not see the defendant until the defendant was ten to twelve feet from the intersection. The defendant argues that plaintiff could have seen the defendant when plaintiff was thirty feet back from the intersection had he looked. We agree with the theory of defendant’s argument to the extent of stating that, at the very least, there is nothing in the evidence regarding the house on the southwest corner of this intersection to prevent the trial court from reasonably believing that in spite of its existence these parties were in sight of each other as defendant testified. That is all that is required. The fact the plaintiff entered this intersection first, or that it was apparent to him or to defendant that plaintiff was going to do so, does not excuse plaintiff from his duty to maintain a vigilant lookout while approaching the intersection. Had the plaintiff looked he would have seen the defendant who, at that same instant, applied his brakes so hard his wheels locked and who was sliding toward the intersection. Under those circumstances plaintiff did not have the right to assume the defendant would yield the right-of-way. Major v. Davenport, Mo.App., 306 S.W.2d 626 (3), (4); Downing v. Dixon, Mo., 313 S.W.2d 644 (8).

Was plaintiff’s contributory negligence a contributing proximate cause of the collision ? We believe it was. Plaintiff traveled thirty feet to the west curb line of Lindenwood and twenty-five feet across the west half of that street, a total of fifty-five feet. In addition, defendant was three feet east of the center line. Plaintiff, therefore, traveled fifty-eight feet and, proceeding at ten miles per hour, had he seen the defendant when he should have, and considering his snow tires were only two or three months old, could have stopped or so slowed down within that distance that defendant could have passed through without the impact occurring. Especially is this true when defendant’s evidence was that he was able to decrease his own speed by ten miles per hour in a distance of some sixty feet while sliding, and without any evidence as to snow tires or other such special equipment. We hold that under these facts plaintiff’s contributory negligence in failing to keep a vigilant lookout was a contributing proximate cause of the collision. That being so, it is unnecessary, to decide whether plaintiff was also con-tributorially negligent in entering the intersection when it should have been apparent to him that a collision would ensue. It follows that plaintiff’s first allegation of prejudicial error is without merit.

The plaintiff alleged defendant’s humanitarian negligence in that defendant failed to stop or swerve or slacken speed or warn. The basic fact upon which imposition of the humanitarian doctrine rests is the position of immediate danger (“eminent peril” prior to M.A.I.). The immediate danger must be certain and impending, and the mere likelihood or bare possibility that a collision will occur is not sufficient. See Crockwell v. Oldani, 401 S.W.2d 701, opinion of this court filed December 20, 1966. Was that the situation when the defendant first saw the plaintiff thirty feet back from the west curb line of Lindenwood? It might be argued that it was and in support therefor the defendant’s action in immediately putting on his brakes is cited as evidence defendant was then aware that plaintiff intended to proceed at an undiminished rate of speed directly across his path. Upon more mature reflection the fallacy inherent in this argument becomes apparent. Defendant’s action in immediately applying his brakes upon viewing the plaintiff is at least as indicative of ordinary caution as it is evidence of defendant’s knowledge plaintiff was then in a position of immediate danger. Defendant’s action in applying his brakes could have been taken as a precaution even though, at the same time, he reasonably could have expected the plaintiff to bring his automobile, then proceeding at a rate of ten miles per hour, to a stop before it traveled the fifty-eight feet necessary to reach defendant’s path. At least defendant’s action taken upon first seeing the plaintiff is as susceptible to that interpretation as it is to the interpretation it showed that defendant then knew plaintiff was in a position of immediate danger. It being possible to draw two different inferences of equal strength, defendant’s action cannot be taken as proof plaintiff was in a position of immediate danger when he was thirty feet back from the intersection.

Under the factual situation presented in this case we believe the plaintiff first came in a position of immediate danger when he entered the intersection. This for the reason that prior to that time the plaintiff was proceeding at such a speed and was such a distance from defendant’s path that defendant could reasonably expect him to bring his automobile to a halt prior to entering that path. Thus the necessary element of notice of plaintiff’s immediate danger is not present prior to plaintiff’s entering the intersection. Could the defendant thereafter have avoided the collision with the means at hand and without injury to himself or others, and by acting as plaintiff alleges he should have acted? There was no evidence defendant could have stopped short of plaintiff’s automobile. His testimony was that he didn’t know how far it would take to stop and it is undisputed that his brakes were on so hard that they locked. His brakes had been applied in this fashion ever since he first saw the defendant and yet he could not stop. The same evidence negates any possibility the defendant could have slackened his speed so as to have avoided the collision. Once he put his brakes on as hard as he could, he kept them that way until the time of the collision. With regard to swerving, the petition alleges that the defendant should have turned his automobile “aside”, although it does not state which direction he should have turned. If he turned to the right he would have hit the plaintiff’s automobile more nearly toward the center or front and so plaintiff cannot realistically make any contention as to failure to swerve to the right. Swerving to the left might have avoided the collision but the defendant was sliding from the time he put on his brakes until the moment of impact. It begs credulity, and there is no evidence from which it could be inferred that, while his brakes were on so hard they locked and his automobile was sliding, the defendant still could have swerved it to the left. If he had swerved to the left immediately upon seeing the plaintiff we are left to speculation and conjecture as to whether the impact could have been avoided, and, in fact, the stronger inference from the evidence is that it still would have taken place albeit in the west half of Lindenwood Street.

We come then to the last pleaded ground of humanitarian negligence; i. e., failure to warn. The evidence is clear that a warning would have served no purpose. The plaintiff’s testimony was that when he was twelve feet back from the intersection he saw the defendant. Had the defendant sounded his horn when the plaintiff first came into a position of immediate danger it would not have given the plaintiff any additional knowledge as, at that time, plaintiff had seen the defendant and so possessed all the knowledge of defendant’s approach a warning could have brought him. Moreover, he had possessed that knowledge during the slightly less than one second in time it took him to travel from a position twelve feet west of the intersection to the position of immediate danger at the west curb line of Lindenwood. It follows that failure to warn could not have been the proximate cause of this collision and plaintiff’s second allegation of prejudicial error is without merit.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by BRADY, C, is adopted as the opinion of the court. The judgment is affirmed.

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


author: WOLFE, Presiding Judge.

text:
    William T. DAWSON, Employee, Appellant, v. CLARK OIL AND REFINING CORPORATION, Employer, and Royal Indemnity Company, Insurer, Respondents.
    No. 32464.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.
    Milton Suffian and Joseph S. Rosenthal, St. Louis, for appellant.
    Albert I. Graff, Malcolm I. Frank, St. Louis, Sandor Korein, E. St. Louis, J. J. Zych, St. Louis, for respondents.
   WOLFE, Presiding Judge.

This concerns a claim filed before the Division of Workmen’s Compensation of the Department of Labor and Industrial Relations of Missouri. The claimant asserted in his claim that he suffered a back injury resulting from an accident that occurred while he was working for the Clark Oil and Refining Corporation. The corporation generally denied the claim and specifically denied that the claimant was an employee. Upon a hearing before the Referee of the Commission there was a finding that the claimant was not an employee and that he suffered no accident. Upon appeal to the full Commission the Commission held that the claimant was not an employee within the meaning of the Workmen’s Compensation Law. An appeal was then taken to the Circuit Court where the Commission was affirmed. This was followed by an appeal to this court from the judgment of the Circuit Court.

Dawson, the claimant, started working as an employee of the Clark Oil and Refining Corporation in March of 1958 as a service station attendant. Until May 21, 1962, the claimant worked at various jobs for the corporation. In January of 1962 he became the manager of a service station operated by the Clark Oil and Refining Corporation at 1700 South Florissant Road in St. Louis County, Missouri. He drew a salary in his position as manager and served in that capacity until May 21,1962. On that date he leased the station which he had been managing and became a franchised dealer for the Clark Oil and Refining Corporation. The lease provided for a rental in a sum equal to 2.65 cents for each gallon of gasoline sold from the pumps and this sum was payable monthly. The lease also provided that Dawson was free to sell the products of any supplier and that the business of operating the station was under his control.

At the same time the lease was signed a retail dealers consignment agreement was entered into by which the Clark Oil and Refining Corporation agreed to deliver to Dawson gasoline in such quantities as Dawson might from time to time require. Dawson took the gasoline on consignment and agreed to sell it at the prices authorized from time to time by the consignors. Dawson also agreed to operate the station at his own expense, employ his own help, carry the necessary liability insurance, pay taxes required of such an operation including license fees. He was to have as his profit the difference between the retail tax included price and the dealer’s tank wagon price, and this differential was never to be less than three cents per gallon. The balance of the consignment agreement dealt with the manner of paying for the gasoline he sold and the manner in which the agreement could be terminated. It provided that the lease could be terminated at the option of the lessor if the station was closed for 48 successive hours.

At the time of the signing of the lease Dawson also bought from the corporation merchandise other than gasoline that it had in stock at the service station and he gave his note for the purchase price. There was a sign above the door of the service station with Dawson’s name on it as manager before he signed the lease and this was replaced by a sign with the word “dealer” after his name after the lease was signed. Dawson testified that he ran the station in many respects as he had done when he was manager. The corporation did not want any repair work done at the station or any cars parked there and he said that at the request of the corporation supervisor he allowed no parking of automobiles on the station grounds and did no repair work. Cigarettes had always been sold at the station but the corporation did not supply them after Dawson became dealer and he could buy them from any source and of course the profits on their sale belonged to him as did the profits from the sale of oil.

He said that some flowers planted on the premises died and at the suggestion of the supervisor he bought some more flowers and planted them. Dawson in his income tax return reported his income during the term of his lease as a self-employer.

As to the injury Dawson claimed to have suffered he testified that it occurred when he was helping carry an electric water cooler out of the door of the service station. He said that he slipped and caught the cooler to prevent it from falling and experienced a sharp pain in his back. This occurred on September 6, 1962. He said that he was carrying out the water cooler at the direction of Mr. Duecker who was a supervisor for Clark Oil and Refining Corporation and Mr. Duecker was helping him carry it out. The purpose of taking it out was to clean away, with an air hose, dust and dirt that had accumulated in it.

Dawson went to the hospital four days later because his back bothered him. He gave a history of having hurt his back while mowing the lawn. The doctor who treated him in the hospital and testified as claimant’s witness said claimant gave him a history in July, 1964, of having slipped while carrying a water cooler. Dawson had suffered from back trouble as far back as 1947 and had been hospitalized for it before and after the alleged accident here under consideration. Because of his back he was unable to continue as a dealer for the corporation. He entered an agreement with it on September 29, 1962, surrendering the premises to the corporation and the corporation cancelled his obligations under the lease.

Dawson stated that after he leased the premises and became a dealer the items that he sold on the premises were the same as he had sold before; gasoline, oil and cigarettes. He deposited the corporation’s share of the money received from the sale of the gasoline to the account of the corporation. All other receipts were deposited in his own name. The corporation suggested the retail price of the gasoline and he charged the amount the corporation suggested. He did not park cars or repair them on the premises. A salesman for the corporation named Brand and a supervisor named Duecker still called on him at the station. Dawson said that he had to submit the work schedule of his employees to Brand for approval. He stated that one of the employees of the corporation told him to use a certain auditor and that the auditor sent a report to the corporation but that he had never told him to do so. Brand, who was no longer employed by the corporation, was called as a witness for the claimant and upon cross-examination he stated that he did not recall telling Dawson that he had to do anything.

Clark Oil and Refining Corporation called its supervisor named Duecker as a witness. Duecker stated that when a dealer takes over a service station he usually doesn’t know too much about business: he needs a bookkeeper and can get one of any number of them. New dealers are told they can hire anyone they want. Many times they have friends who are bookkeepers. He stated that when Dawson leased the station he told him that. Duecker stated that he had never issued specific instructions as to the number of hours a lessee would work and that when a dealer takes over a station he knows that he is going to put in a few more hours than a forty hour week. If a dealer wants to make more money he does this by hiring less help and putting in more hours himself. Neither the corporation or Mr. Duecker hire or fire any employees at a leased station and maintain no records or insurance records for those stations. The corporation does tell the dealers the price of gasoline at company operated stations and suggests that they charge the price, but the dealers make the same amount of profit whether the price of gas is up or down. He exercises no supervisory control over a dealer and does not tell them the standard of cleanliness to maintain.

He stated that he never told Dawson to plant flowers or suggested that he do so or had any conversation with him concerning flowers. He recalled helping carry out the water cooler. He suggested at the time that if Dawson wanted to carry it out he would help him. They carried it out, cleaned out the cobwebs and dust that had gathered there. Dawson never told him of any injury or pain and he was not aware of Dawson slipping or anything else happening while they were carrying the water cooler out.

As above stated, the Referee found that the claimant was not an employee and that he did not sustain the accident alleged. There was ample evidence to support the finding that the claimant did not suffer the alleged accident but we are not concerned with that for upon appeal to the Industrial Commission the Commission found only that claimant was not an employee of the Clark Oil and Refining Corporation within the meaning of the Workmen’s Compensation Law. Upon review by the Circuit Court that court affirmed the finding of the Commission. Upon its review it was obliged to determine whether or not upon the whole record the Commission could have reasonably made its finding. Our review on this appeal from the Circuit Court is the same and we may not set aside the Commission’s finding unless it is clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292; Brandt v. E. O. Dorsch Electric Company, Mo.App., 400 S.W.2d 452.

The claimant’s own testimony was that he was a dealer and that he had leased the premises from the Clark Oil and Refining Corporation. He asserts, that despite this, the landlord exercised sufficient control over the premises and his work to make him an employee under the Workmen’s Compensation Law. In a case similar in all pertinent respects to the one here under consideration the Springfield Court of Appeals had this to say, Johnson v. Simpson Oil Company, Mo.App., 394 S.W.2d 91, l. c. 95:

“[2] Claimant here concedes that he was an independent contractor and not an actual employee of Simpson, but he insists that he was a statutory employee. Section 287.040. The essential elements of statutory employment, as stated in subsection 1 of Section 287.040, are (a) ‘work done under contract,’ (b) ‘on or about the premises of the employer,’ and (c) in an operation of the employer’s usual business there conducted. Grauf v. City of Salem, Mo.App., 283 S.W.2d 14, 17(2); Snethen v. American Compressed Steel, Mo.App., 272 S.W.2d 850, 854. See Shafer v. Southwestern Bell Tel. Co., Mo., 295 S.W.2d 109, 115. ‘Premises,’ as used in the cited statute, ‘contemplates any place, under the exclusive control of the employer, where the employer’s usual business is being carried on or conducted * * *.’ Sargent v. Clements, 337 Mo. 1127, 1134, 88 S.W.2d 174, 178(5); State ex rel. Potashnick v. Fulbright, 350 Mo. 858, 862, 169 S.W.2d 59, 61(2); Baker v. Iowa-Missouri Walnut Log Co., Mo.App., 270 S.W.2d 73, 76(4). This definition of ‘premises’ is compatible with subsection 2 of Section 287.040 which states that ‘[t]he provisions of this section shall apply to the relationship of landlord and tenant, and lessor or lessee, when created for the fraudulent purpose of avoiding liability, hut not otherwise.’ (Emphasis ours.) * * * ”

As there was no suggestion of fraudulent purpose, the court in the Simpson case, supra, affirmed the Circuit Court’s affirmation of the Commission’s finding that the relation between the claimant and Simpson Oil Company was not that of an employer and employee but that of landlord and tenant. We concur in Johnson v. Simpson Oil Company, supra, and find it determinative of the issues presented here.

In the case before us there is no evidence of any kind in the record that the relationship created by the lease was for fraudulent purposes and we find the Commission’s finding fully supported by the evidence.

The judgment of the Circuit Court affirming the award of the Commission is affirmed.

ANDERSON and RUDDY, JJ., concur.


author: TITUS, Judge.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Plaintiff-Appellant, v. C. W. TERRELL, Defendant-Respondent.
    No. 8540.
    Springfield Court of Appeals. Missouri.
    Dec. 5, 1966.
    Motion for Rehearing and to Transfer to Supreme Court Denied Dec. 30, 1966.

      Riddle, O’Herin & Newberry, Malden, for plaintiff-appellant.
    Blanton, Blanton & Rice, David E. Blan-ton, Sikeston, for defendant-respondent.
   TITUS, Judge.

Missouri Pacific Railroad Company sued C. W. Terrell in four counts for de-murrage in the respective amounts of $196 (April 1, 1958), $1,884 (February 1, 1961), $1,672 (February 1, 1961), and $256 (January 25, 1963), together with interest (six per cent, V.A.M.S. § 408.020) from the demand dates parenthetically shown. Without a jury, the Circuit Court of Scott County, Missouri, entered judgment for defendant and the railroad appealed. Only interest earned prior to judgment date and the principal are computed to determine the jurisdictional amount in dispute on appeal. Berry v. Crouse, Mo.App., 370 S.W.2d 724, 725(1, 2); Beckemeier v. Baessler, Mo.App., 261 S.W.2d 511, 512. Our calculations, on this basis, indicate the total sum in controversy to be $5,145.80, so we have jurisdiction. V.A.M.S.Const. Art. 5, §§ 3 and 13; V.A.M.S. § 477.040.

Defendant, a dealer in agricultural lime, had private tracks at facilities he maintained on ground leased from plaintiff in Sikes-ton and Charleston, Missouri. The petition’s counts concern lime consigned to defendant at his two plants and shipped at his convenience from Piedmont, Missouri, on four occasions in February 1958, March 1960, February 1961, and January 1962.

Under applicable tariffs duly filed with the Interstate Commerce Commission and Public Service Commission of Missouri, demurrage rules permitted defendant forty-eight hours’ free time to unload cars after arrival. Demurrage at $4 per day was charged for the first four days following the free time, and thereafter the per diem demurrage was $8. Section A, Rule 8 of Demurrage Rules and Charges provided : “ * * * 2. When, at the time of the actual placement, lading is frozen or congealed so as to require heating, thawing or loosening, to unload, the free time shall be extended * * * not to exceed a maximum of two days,” provided the consignee gives the carrier the required notice, which was done here.

Demurrage average agreements, optional with and voluntarily entered into by the parties pursuant to Rule 9 of the tariffs, permitted defendant to receive a credit for each car released during the first twenty-four hours of free time and charged defendant with a debit per day for each car held beyond the allowable free time. The credits and debits thus accumulated in a calendar month were figured together to determine the amount of demurrage, if any, due plaintiff from defendant.

Each shipment subject to this controversy arrived frozen and the cars were not unloaded by defendant within the free time allowed or extended by Rule 8. Defendant does not dispute plaintiff’s figures on the demurrage charges. Simply stated, defendant’s position is that since he used diligence (which was stipulated) to unload the cars as soon as the lime thawed by rising temperatures, he should be excused for failure to unload the cars on time as his performance was rendered impossible by an act of God or, depending upon abilities at linguistics, vis major, force majuere, or hohere Gewalt. Allusion is also made by defendant to terms of “unavoidable accident” and “stress of circumstances.” Neither party has cited nor have we found any reported case precisely parallel with the presented issues.

Some authorities (among admitted confusion) indicate demurrage can be cancelled only under circumstances specified in the tariff even though detention of the cars over the free time is beyond the control of the shipper or consignee. Plaintiff insists we apply what is sometimes denominated vestus jus, which provided neither hell, high water, impossibility, nor acts of God would excuse duties voluntarily assumed by contract. Defendant concedes that had the tariffs been conceived of a union freely made by the parties, he would be bound to honor and obey the demurrage regulations. He asserts, however, his accouplement to the tariffs personified freedom of contract no better than a wedding vi et armis and that we are required to distinguish duties voluntarily assumed from relational duties imposed by law where parties, for example, assume the relationship of common carrier and consignee.

Defendant additionally contends where obligations or duties are imposed by law, impossibility, an act of God or unavoidable accident will absolve him from liability. This smacks of what some authorities previously cited describe as a departure from the strict law of voluntary contracts, and while we have not found and undertake no judicial comparison of what excuses under Missouri law will relieve a party from voluntarily assumed obligations and those imposed by law, a fleeting blush indicates little distinction in the areas suggested by defendant. The Missouri Supreme Court, en Banc, in Ellis Gray Milling Co. v. Sheppard, 359 Mo. 505, 222 S.W.2d 742, 748(5), said, “So far as we can find, the rule in this state announced in Ward v, Haren, 135 Mo.App. 8, 14, 119 S.W. 446, 448, has not since been departed from, that 'if a party, by his contract, charge himself with an obligation possible to be performed, he must make it good unless its performance is rendered impossible by an act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.”’ Accord, Stein v. Bruce, Mo.App., 366 S.W.2d 732, 734(1).

Plaintiff insists the voluntary entry of the parties into the demurrage average agreements as allowed by Rule 9 removed the relationship from that strictly imposed by law and requires application of rules relating to obligations freely made. Southern Ry. Co. v. White, supra, 6 Cir., 284 F. 560, 26 A.L.R. 1429, did not involve a de-murrage average agreement. Nevertheless, the court said, 284 F. 1. c. 562: “We are informed * * * many railroads have adopted the so-called average demurrage tariff, whereby the shipper or consignee has the optional right to receive cars under this average demurrage tariff instead of under the uniform demurrage tariff indicated by this record, and by which average demurrage tariff delays beyond the free time, occasioned by weather conditions, can be offset against anticipations of the return time limit made in other instances. It is quite apparent that such a situation would be different — perhaps materially— from that which we have considered.” The terms of the demurrage average agreements certainly could serve to afford relief to defendant under the circumstances attending the deliveries here in question. Pennsylvania Railroad Co. v. Kittaning Iron & Steel Mfg. Co., supra, 253 U.S. 319, 324, 40 S.Ct. 532, 64 L.Ed. 928, 930-931. Since obiter dictum, such as found in the last two cited cases, does not often freeze sufficiently to permit safe skating, and, as it seems unnecessary, we decline to test the weight of this decision on what may or may not be thin ice.

Irrespective of the different approaches made by the parties to the issues, the general rule appears to be that the duty of a consignee to unload cars within the free time given or specifically extended by the tariffs, and his obligation to pay demur-rage for overtime detention, are obligations imposed by law, and where consignee’s failure to unload within the free time is entirely due to an act of God or vis major, consignee shall not be liable for demurrage. Norfolk Southern Ry. Co. v. Glover, 222 N.C. 594, 24 S.E.2d 250, 251(1), and cases previously cited.

The alleged impossibility of defendant’s performance within the free time provided and extended by the tariffs is solely attributable by him to an act of God or vis major in the form of temperatures which froze the lading. He makes no claim and offered no evidence the lime arrived frozen through any fault of the carrier. Neither does defendant assert the freezing temperatures were rare for the season in which shipments were made at his convenience. The exhibits of record show temperatures in the period involved in February 1958 ranged from a low of minus two degrees to a high of forty-six degrees. In March 1960 the low was ten degrees and the high sixty degrees. Temperatures during the latter part of February and in March 1961 went from twenty degrees to fifty-five degrees, and in January 1962 varied from minus five degrees to fifty degrees. These figures merely reflect what is common knowledge and corroborate an admonition attributed to Samuel Clemens that “If you don’t like Missouri weather, wait a minute.”

An act of God “is an event in nature so extraordinary that the history of climatic variations in the locality affords no reasonable warning of their coming.” Corrington v. Kalicak, Mo.App., 319 S.W.2d 888, 892(3). “[F]reezing weather coming especially in that season of the year, when such weather may be expected, cannot be brought within the definitions * * * of the act of God or inevitable accidents * * * ” McGraw v. Baltimore & Ohio Railroad Co., 18 W.Va. 361, 41 Am.Rep. 696, 699. Also see M. F. A. Farmers Exchange of Carthage v. Kurn, Mo.App., 205 S.W.2d 878, 881(1); Miller v. United States (D.C.Del.), 192 F.Supp. 218, 220(3); 1 C.J.S. Act, p. 923. “An ‘act of God’ * * * is an occurrence due to natural causes against which ordinary skill and foresight is not expected to provide.” Buschelberg v. Chicago, B. & Q. R. Co., Mo.App., 289 S.W.2d 447, 449 (2). The most that can be said for the record before us is that freezing temperatures occurred in Missouri in the months of January, February, and March of the years indicated by the exhibits. This not only fails to suggest the occurrence of an act of God, but equally defaults in aludement to any but the usual, ordinary and expected weather. What did in fact occur was anticipated and specifically recognized by the tariffs. The impossibility contended by defendant is referable not to practicable, factual, or physical impossibility, but to impossibility for him to unload the cars in the manner he customarily employed during warm weather or when temperatures were above freezing. As foreseen by the tariffs, there would be times when defendant would be required to resort to “heating, thawing, or loosening” frozen lading in order to remove it from the cars. When such burden was cast upon defendant the rules provided some compensation therefor by allowing an extra forty-eight hours to unload without liability for de-murrage. Although frozen lading may suggest inconvenience or even additional expense to defendant in unloading the lime, impossibility to constitute a legal excuse is not made to appear.

There is nothing in this case to cause departure from well established law that the published tariffs and demurrage rules were binding on both plaintiff and defendant with the force of law, and defendant’s liability to pay the demurrage charges could not be waived by estoppel, any agreement, understanding, or course of conduct between the parties. Application of the tariffs must be objective and not attuned to consideration of the needs or merits of an individual consignee in a given case.

For the reasons stated, the judgment of the trial court is reversed and remanded with directions to set it aside and to render judgment in favor of plaintiff (appellant) on each count of the petition for the calculated demurrage due, together with interest on each sum from the date when payment thereof was demanded to date of such judgment entry.

STONE, P. J., and HOGAN, J., concur.

      . Reading Company v. Commodity Credit Corp., 3 Cir., 289 F.2d 744, 749(3, 4); Pennsylvania Railroad Co. v. Kittaning Iron & Steel Mfg. Co., 253 U.S. 319, 40 S.Ct. 532, 64 L.Ed. 928, 930; Anno: 44 A.L.R., pp. 829 et seq.

      . Chicago, B. & Q. R. Co. v. Blunk (D.C. Iowa), 101 F.Supp. 219, 220(6); Southern Ry. Co. v. White, 6 Cir., 284 F. 560, 561-562(1), 26 A.L.R. 1429; Williston on Contracts, 3rd Ed., § 32A, pp. 88-92; 6 Corbin on Contracts, § 1324, pp. 335-337; 17 Am.Jur.2d, Contracts § 404, p. 852.

      . Southern Ry. Co. v. White, supra, 6 Cir. 284 F. 560, 561(1), 26 A.L.R. 1429; Berg v. Erickson, 8 Cir., 234 F. 817, 820 (2 and 3), L.R.A.1917A, 648; Chesapeake & O. R. Co. v. Board, 100 W.Va. 222, 130 S.E. 524, 44 A.L.R. 826; 13 Am.Jur.2d, Carriers § 487, pp. 955-956.

      . Chesapeake & O. Ry. Co. v. Gorman, 300 Ky. 230, 188 S.W.2d 316, 318-319(1); Union Transfer Co. v. Renstrom, 151 Neb. 326, 37 N.W.2d 383, 385(3); Chicago & N. W. Ry. Co. v. Mallory, 147 Neb. 548, 23 N.W.2d 735-738(1); Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520-521, 59 S.Ct. 612, 83 L.Ed. 953, 957; Crancer v. Lowden, 8 Cir., 121 F.2d 645, affirmed 315 U.S. 631, 62 S.Ct. 763, 86 L.Ed. 1077; Southern Ry. Co. v. Aluminum Co. of Amer. (D.C.Tenn.) 119 F.Supp. 389, 393(1); 49 U.S.C.A., §§ 2, 3(1), 6(7); V.A.M.S. § 387.100; Davis v. Keystone Steel & Wire Co., 317 Ill. 278, 148 N.E. 47, 51(5); St. Louis, Southwestern Ry. Co. v. Mays (D.C.Ark.), 177 F.Supp. 182, 184(5, 6); Scandrett v. Worden-Allen Co., 238 Wis. 272, 299 N.W. 52, 56(6); Mellon v. Stockton & Lampkin, 326 Mo. 129, 30 S.W.2d 974, 975(2), 225 Mo.App. 122, 35 S.W.2d 612, 613(1, 2); Wabash R. Co. v. Berg, Mo.App., 318 S.W.2d 504, 509-510 (2).


text:
    LAKE DEVELOPMENT ENTERPRISES, INC., a Corporation, Plaintiff-Appellant, v. Alfred F. KOJETINSKY and Mrs. Alfred F. Kojetinsky, Defendants-Respondents.
    No. 32145.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.

      Earl R. Blackwell, Hillsboro, for plaintiff-appellant.
    James K. Pendleton, Daniel P. Reardon, John H. Martin, St. Louis, for defendants-respondents.
   BRADY, Commissioner.

Plaintiff brought suit to enforce the provisions of a warranty deed granting certain lots in a subdivision to the defendants. The trial court entered judgment for defendants. We will hereafter refer to the defendants in the singular.

The rules of review attendant upon a case of this nature are well known. We are to hear the case de novo, and, giving due deference to the trial court’s findings where matters involving the credibility of a witness are involved, reach our own conclusions as to the facts. Selsor v. Shelby, Mo.App., 401 S.W.2d 169.

The petition alleged plaintiff’s corporate existence; that both parties owned certain lots in Lake Tishomingo, a subdivision located in Jefferson County, Missouri; the adoption of a general plan of development for said subdivision which led to the insertion in the deed to the defendant and to all purchasers of certain restrictions governing the use of land in the subdivision among which is the provision later set forth; that defendant’s property and all the lots in the subdivision were thereby impressed with an “equitable servitude” for the benefit of the grantees of all the other lots therein; the use of each lot, except defendant’s property, in a manner consistent with the restrictions; the violation of the restriction above set out by the defendant; plaintiff’s request to the defendant to cease such violation, the defendant’s refusal to do so and his threatened continuation of it; plaintiff’s threatened irreparable damage and his lack of an adequate remedy at law. Plaintiff prayed for injunctive relief restraining defendant from continuing to maintain this structure on the parkway.

In those parts pertinent to his appeal, defendant’s answer alleges that plaintiff acquiesced in the erection of the building and now is estopped from seeking its removal; laches; and that the restrictions have been abandoned by plaintiff’s failure to enforce this and other restrictions found in the deed. Defendant also based his defense upon the theory the restrictions were unjustly enforced in a discriminatory manner in that violations by others were allowed while his was made the result of this action.

The provision of the deed specifically involved reads: “3. There will be no restrictions as to cost of any residence but complete architect’s plans and specifications must be submitted for the approval of the Lake Development Enterprises Company, Inc., before building operations are started. No residence shall be wholly or partly covered with tar paper, metal or canvas, and no tent house or shack shall be on said lot. No building without a painted or otherwise finished outside surface shall be on said lot unless of log or slab construction. No Auto Trailer or Movable Home or House shall be allowed on said lot. No storage tank shall be above ground on said lot without written consent of the GRANTOR. No building or construction of any kind may be made on the Parkway surrounding said Lake without the written consent of the GRANTOR. All docks for the mooring of boats or other purposes shall be of a standard design that will be furnished by GRANTOR with a building permit.” (Emphasis supplied.)

Other provisions of the warranty deed which are pertinent to this appeal read as follows: “4. No outbuildings shall be built on said lot. Garages shall be attached to or built in as a part of the residence. All rear entrances to residences shall be from the side of the residence where possible * * It also appears that, while it is not so stated in the warranty deed, the plaintiff was responsible for cutting the brush and weeds and general maintenance of the parkway.

The facts pertinent to this case show that this subdivision was platted around a lake and that the “parkway” referred to in Paragraph 3 of the warranty deed is a strip of land surrounding the lake and lying between it and the property line of the lake front lots. Defendant purchased four lots each of which is subject to the restrictions set out in this opinion. The structure here involved is a one-story wood building opening onto a stone covered patio. It is on the parkway at the lake’s edge and is adjacent to defendant’s dock. There is no dispute in the evidence as to defendant’s request for permission to construct this building, and neither is there any dispute as to the refusal of that request by the plaintiff. The only dispute is as to the manner in which that refusal was communicated to the defendant. The plaintiff’s evidence on this issue is that the defendant made a verbal request directed to its manager for permission and was told that he could not erect this building on the parkway; that at defendant’s request the manager thereafter talked to plaintiff’s president concerning the request; that the manager thereafter again informed the defendant that he could not have permission; and that both of these occurrences were prior to the beginning of any construction by the defendant. The defendant’s own testimony on this issue is that when he made a verbal request of plaintiff’s manager, the manager shook his head in a manner which defendant understood as indicating refusal; that defendant then gave the manager a plan or picture of the project (it is not clear which was given) and after consulting plaintiff’s president, the manager again shook his head to indicate refusal. Defendant admitted that he received at least two letters from plaintiff informing him that the building on the parkway was in violation of the restrictions. There was no contention that written permission had ever been given for the erection of this building.

With reference to defendant’s affirmative defenses, the evidence was undisputed that the restriction requiring storage tanks to be underground has never been enforced, and neither has the restriction which states that docks shall be of a standard design which will be furnished by the plaintiff. Plaintiff’s evidence on this issue is to the effect that it hasn’t furnished a standard design for the docks but that it has re-, quired some that weren’t properly constructed to be rebuilt and in this manner has effected somewhat of a standard design.

The defendant contends that appellant has permitted the erection and maintenance of many temporary utility buildings in violation of the restrictions providing no outbuildings are to be constructed, that no building is to have an outside surface that is not painted or otherwise finished unless it be of log or slab construction, and that no residence should be wholly or partly covered with tar paper, metal or canvas. In his brief, defendant cites eleven exhibits which are pictures of various buildings which he contends are representative of the numerous violations of this restriction. Perusal of these exhibits indicates that three are clear violations in that they are wholly or partly covered with tar paper, and nine indicate the erection of a temporary utility or storage building characterized by defendant as an “outbuilding”.

Defendant’s brief cites twenty-one picture exhibits which he contends show structures maintained by others on the parkway. Some of these exhibits show retaining walls constructed of railroad ties, others show rectangular storage boxes placed upon rollers or upon concrete blocks maintained on the parkway, and still others show metal awnings placed on four metal poles covering patios and open on all four sides. There was no evidence as to whether written permission for any of these had ever been obtained from the plaintiff. None of the exhibits shows a structure similar in permanence or size to the defendant’s building. Defendant’s other exhibits deal with the accumulation of brush and wood along the parkway. Plaintiff’s evidence was that the conditions shown on these pictures have been corrected and that the parkway has for some time been maintained in good condition.

The defendant’s contention was that the plaintiff’s manager knew of the construction of defendant’s building from the very beginning of that construction. His proof on this issue consisted of certain questions and answers reading into evidence from the deposition of Mr. Bastman, plaintiff’s president. That portion of the Bastman deposition bearing upon this issue reads as follows:

“Q. Do you regularly make inspections and tour around the Lake?
“A. Mr. Hurd goes around there everyday.
“Q. Hurd does it everyday? A. Yeah.
“Q. So if there was any work going on in the nature of work upon any docks or any buildings in that parkway that you speak of, Mr. Hurd would certainly be familiar with it because he inspects it everyday?
“A. If he would be able to see it from the road he would see it, but he wasn’t able to see that from the road.
“Q. I want to make it clear, Mr. Bastman, Mr. Hurd, everyday as you just said, goes on to the lake and looks to see what’s going on?
“A. That’s right.
“Q. That’s part of his work? A. That’s correct.
“Q. And does do it? A. Yes. (Indicating)
“Q. Except when the lake is froze or something like that?
“A. He don’t go around the lake.” (Emphasis supplied.)

Defendant contends that plaintiff cannot complain to this court concerning the trial court’s action for the reason that the issuance or refusal of a mandatory injunction lies within the discretion of the trial court and there is no allegation in the plaintiff’s motion for new trial contending that the trial court abused its discretion. We cannot agree. The pertinent effect of the plaintiff’s motion for new trial is that the trial court erred in refusing to issue this mandatory injunction. If he did so err, he abused his discretion. There is no merit to this allegation of error.

It is firmly established in this State that a court is vested with power and authority by means of a mandatory injunction to compel the undoing: of a thing already done in violation of restrictive agreements affecting real estate. Eichelsbach v. Harding, Mo.App., 309 S.W.2d 681, l. c. 684 [5] and cases there cited.

The burden was on the plaintiff to prove breach of the covenant. Smith v. Nussbaum, Mo.App., 71 S.W.2d 82. This burden was easy to bear in the instant case. As stated earlier herein, defendant never made any contention that plaintiff had given written consent to the erection of this structure. Without this permission the defendant’s actions were in violation of the covenant absent establishment of one or more of defendant’s pleaded affirmative defenses. Having that fact in mind and considering the undisputed location of defendant’s building as being on the parkway, the plaintiff bore its burden of proof of a breach of the covenant prohibiting erection of a building on the parkway.

The defendant contends plaintiff cannot now proceed against him to correct this violation because it acquiesced in the violation; it was guilty of laches; and because it has abandoned the restriction. The facts do not show acquiescence on the part of the plaintiff. To the contrary, as stated earlier in this opinion, the defendant’s own evidence was that he was told that he could not proceed, that he understood he was refused permission, and that this information was given him before he ever began construction. Moreover, the evidence is undisputed that defendant received several letters while he was in the process of erecting the building telling him that he did not have permission. No doubt realizing the hopelessness of his position on this issue the defendant makes no point of this matter in his brief.

The defendant contends the restrictions have been abandoned by plaintiff. First, he contends that plaintiff has failed to enforce the restriction preventing a building on the parkway without the written consent of the grantor. There are many reasons why this contention is without merit. We will enumerate two, and those but briefly. The first of these is that the evidence does not support defendant’s contention that plaintiff has failed to enforce the restriction against buildings on the parkway. To the contrary, the evidence is that there are no other buildings of a similar permanent nature on the parkway. None of defendant’s exhibits show structures of a character and nature similar to that here involved. One exhibit shows a canvas tent which, of course, is not a building. Others show rectangular boxes which are not buildings or constructions. Moreover, it is obvious from the exhibits that they are not constructed upon the parkway but are placed upon rollers or blocks and, since they have handles, it may be inferred that from time to time they are removed. The defendant’s building is a one-story wood building which is constructed on the parkway and does do exactly what this restriction was intended to prevent; i. e., blocking the view of the lake. Within the reference of this restriction the difference between defendant’s building and the boxes, etc., shown in defendant’s exhibits is too obvious to dwell upon further. As we read the evidence in this case we are compelled to the conclusion that plaintiff has enforced the restriction against buildings on the parkway. The second answer to this contention is that even if we were to hold that the defendant’s exhibits show violations of this restriction (and we find to the contrary), defendant’s contention of abandonment would still fail. This for the reason there is no proof the things shown in defendant’s exhibits were not placed there with the plaintiff’s permission. The defendant impliedly recognizes this deficiency by his contention he is the victim of discrimination and that plaintiff is granting permission to violate this restriction on the basis of its “whim and caprice” instead of upon a reasonable basis. See 19 A.L.R.2d 1294 (§ 10). We have already held that the things shown in the exhibits are not comparable to the defendant’s building and so this argument must fail, but it is inapplicable regardless of that ruling. The purpose of this restriction was undoubtedly to prevent structures which would block a view of the lake and none of the things shown in the defendant’s exhibits do this except for the building which is the subject of this controversy. Accordingly, there would be a reasonable basis to grant permission for the things shown in defendant’s exhibits while denying permission for the construction of the building here involved.

The defendant then advances the contention that since the plaintiff has failed to enforce certain other restrictions contained in the warranty deed, it has abandoned them and that such abandonment constitutes an abandonment of all the restrictions in the deed including the one barring construction of any building on the parkway. In the instant case restriction against storage tanks being above ground has been abandoned, or at least the evidence is that it has been so as to propane gas storage tanks. The evidence of abandonment is undisputed as to the restriction requiring “ * * * All rear entrances to residences shall be from the side of the residence where possible * * (Emphasis supplied.) In addition, there is some evidence that the restriction as to the standard construction of docks has been abandoned at least to the extent that the plaintiff has not and does not furnish a “standard design”. There is also evidence that at least three lots have buildings which violate the restriction against being covered wholly or partly by tar paper.

It is true that in Eichelsbach v. Harding, supra, 309 S.W.2d l. c. 686, this court said: “ * * * Receiving universal recognition is the principle that where, as here, the restrictions apply to an entire subdivision, and are part of an over-all scheme designed for the benefit of all property owners in the restricted area, violations of the restrictions must be so general as to indicate an intention or purpose on the part of those residing in the subdivsion to abandon the plan or scheme intended to be maintained by force of the restrictions. * * But that case is not pertinent to defendant’s contention abandonment of other restrictions means abandonment of that prohibiting buildings on the parkway also. In Eichelsbach v. Harding, supra, only one restriction was involved and the language cited, read in reference to the fact of that case, merely means that when there are repeated and widespread violations of a certain restriction, an intention may be inferred there has been an abandonment of the purpose or scheme that restriction was intended to effect. The case cannot be interpreted as authority for the defendant’s position that abandonment of the purpose or scheme represented by one or more restrictions means that the purpose or scheme represented by other restrictions was also abandoned. The scheme of development of this subdivision or the purpose sought to be achieved by those restrictions as to storage tanks being above ground; as to all “rear” entrances of residences shall be from the “side” (????); as to the plaintiff furnishing a standard design for docks; and prohibiting outbuildings wholly or partially covered with tar paper; these may or may not have been abandoned. It is not necessary to so hold here for even if so, the scheme or purpose sought to be achieved by prohibiting the construction of buildings on the parkway without permission of the plaintiff remains unaffected. The defendant’s contention the plaintiff has abandoned this restriction must be ruled against him.

The general principles applicable to the defense of laches are too well known to require citation. “Laches” is the neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done. There is no fixed period within which a person must assert his claim or be barred by laches. The length of time depends upon the circumstances of the particular case. Mere delay in asserting a right does not of itself constitute laches; the delay involved must work to the disadvantage and prejudice of the defendant. Laches is a question of fact to be determined from all the evidence and circumstances adduced at trial. Equity does not encourage laches. Abernathy v, Hampe, Mo.App., 53 S.W.2d 1090. Laches cannot be invoked to defeat justice. It will be applied only where enforcement of the right asserted would work an injustice. Prestigiacamo v. American Equitable Assur. Co. of New York, 240 Mo.App. 839, 221 S.W.2d 217. American Life & Acc. Ins. Co. v. Morris, Mo.App., 281 S.W.2d 601. The burden of proof as to laches rests on the party asserting it; in this case, the defendant.

Has the defendant established the defense of laches? All that appears from this transcript is that this suit was not filed until after completion of defendant’s structure. There is no evidence as to how long after nor any testimony as to how long it took to construct this building, nor when construction of it began, nor when plaintiff first knew of its construction, nor as to any other matter bearing upon the time that passed between the date the building was finished and the date suit was filed. Counsel for defendant is incorrect in his statement in the brief that appellant’s manager * * * inspects the entire parkway daily * * Tacitly admitting there was no other evidence showing that plaintiff’s manager knew of the erection of defendant’s building, defendant’s counsel uses this statement as a basis for his contention that plaintiff’s recovery should be barred by laches. His argument is that since plaintiff’s manager inspected the premises he must have seen the construction of this building and yet did nothing about it until it was finished. We need not rule the question of whether such evidence would require the plaintiff to take immediate action in the courts to stop defendant from proceeding or be barred by laches. This for the reason that, as is apparent from that portion of this opinion wherein the actual testimony that bears upon that issue is set out, the evidence was to the contrary of what defendant contends it to be. In fact, the evidence was that the inspections made by plaintiff’s manager were made in such a manner that he could not observe whether this cabana was being constructed.

There is another reason that compels our decision against the defendant on this point. While Schaeffer v. Moore, Mo., 262 S.W.2d 854, l. c. 860 [14], is not factually analogous, we believe the rule therein stated with regard to delay is equally applicable to this case. Therein it was held: “ * * * Where no one has been misled to his harm in any legal sense by the delay, and the situation has not materially changed, the delay is not fatal. * * In this case there can be no contention that, regardless of how long a period of time was involved, such delay misled the defendant to his harm in any legal sense. The defendant was never misled by delay or otherwise as to his lack of permission to construct this building. He knew from the very beginning that he lacked the required permission to violate this restriction. Whatever delay occurred cannot be said to have caused the defendant to have reasonably believed the plaintiff had changed its twice repeated position regarding refusal of permission to construct this building.

The exhibits indicate that the building is of such construction that it can easily be removed. In fact, it is reasonable to conclude from looking at the exhibits that the building need not even be torn down to be removed, but is of a size and type of construction that, once removed from its below ground supports, can be removed intact. Considering that factor together with the defendant’s deliberate violation of the restrictive covenant and the value of that covenant to a lake development project such as this, we hold this a proper case for the issuance of a mandatory injunction requiring the defendant to remove his building from the “parkway”.

The judgment is reversed and the cause remanded to the trial court with directions to enter its judgment requiring the defendants to remove their building from the “parkway”.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is reversed and the cause remanded to the trial court with directions to enter its judgment requiring the defendants to remove their building from the “parkway”.

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