author: SAM D. JOHNSON, Justice.

text:
    Willard Ewell STANDRIDGE, Appellant, v. WARRIOR CONSTRUCTORS, INC., Appellee.
    No. 75.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Feb. 28, 1968.

      Jim Brannon, D. L. McClure, Houston, for appellant.
    Blake Tartt, Thomas P. Sartwelle, Fulbright, Crooker, Freeman, Bates & Jawor-ski, Houston, for appellee.
   SAM D. JOHNSON, Justice.

Appellant, Willard Ewell Standridge, was injured while working in Houston on July 29, 1964, and he instituted this suit for common-law damages against appellee, Warrior Constructors, Inc.

Prior to filing the instant suit and after his injury, appellant filed a workmen’s compensation lawsuit against two insurance companies, the Travelers Insurance Company and Fidelity and Casualty Company of New York. In the workmen’s compensation suit appellant alleged that he was employed by Austin Equipment Rental and/or Warrior Constructors. In that prior compensation action, an agreed judgment was entered discharging both insurance companies as to injuries sustained by appellant while in the employ of Austin Equipment and/or Warrior Constructors. Under the trial court’s judgment in that prior suit, the Travelers Insurance Company paid $6,-750.00, and Fidelity and Casualty Company of New York paid $250.00 to the plaintiff, who is appellant here. Thereafter, appellant executed a release to both insurance companies which, in three separate places, referred to injuries sustained by appellant while in the employ of Austin Equipment Rental and/or Warrior Constructors.

In the present case, appellee filed a motion for summary judgment attaching as exhibits the petition, judgment and release in the prior compensation case, and asserting that appellant was thereby precluded from recovery in this action. The trial court granted the motion and entered a summary judgment fox" appellee, Warrior Constructors; and appellant appeals from this action.

The appellant’s response to the motion for summary judgment was an “affidavit” which stated that he was employed by Austin Equipment Rental and not by ap-pellee, Warrior Constructors. This instrument was not sworn to and could not be considered by the trial court, however. Rule 166-A, Texas Rules of Civil Procedure; Art. 23, Sec. 18, Vernon’s Ann.Tex.Rev. Civ.Stat.; State v. LeBlanc, Inc., Tex.Civ. App., 399 S.W.2d 919, no writ hist.

Appellant contends that neither the pleadings, the judgment, nor the release in the prior workmen’s compensation case establish which of the two possible named employers actually was appellant’s employer. Further, that the mere payment to appellant of money by the two insurance companies does not foreclose his right to sue a negligent third party for damages arising out of his injuries. Appellant further urges that even if it be conceded that appellee’s workmen’s compensation insurance carrier did in fact pay a part of the agreed judgment in the prior workmen’s compensation case, that fact will not establish a complete defense to the present action for the reason that appellant was never adjudged to be an employee of appellee. Appellant contends that the record of the prior compensation case simply left the matter of who his employer was unresolved because of the deliberate usage of “and/or” whenever reference was made to it.

The essential question is then presented as to whether or not the record, containing the petition, judgment and release of the prior workmen’s compensation action precludes appellant from recovery in the instant case. We believe that it does.

It is conceded that the appellant’s prior suit for workmen’s compensation benefits arose out of the same accident made the basis of this suit. It was filed against the Travelers Insurance Company and the Fidelity and Casualty Company of New York, the workmen’s compensation carriers (he alleges) for Austin Equipment Rental and/or Warrior Constructors. It is noted that the appellant in his prior petition made the initial selection of the conjunctive-disjunctive “and/or” terminology. In the prior judgment, appellant received workmen’s compensation benefits from both of the named compensation carriers. In the release, signed by both the appellant and his attorney, both compensation carriers were released from liability for all claims and causes of action arising out of the accident made the basis of the action in the case at bar.

Appellant now alleges in the case at bar that at the time of the accident, he was an employee of Austin Equipment Rental and was injured by the negligence of Warrior Constructor’s agents, servants or employees, and is therefore entitled to common-law damages against appellee.

If appellant was employed by Warrior and if appellant had collected workmen’s compensation benefits from the compensation carrier for Warrior, this case will be controlled by Vernon’s Ann.Texas Revised Civil Stats., Art. 8306, Sec. 3 (1967), which provides, “The employees of a subscriber * * * shall have no right of action against their employer or against any agent, servant or employee of said employer for damages for personal injuries * * * but such employees * * * shall look for compensation solely to the association, as the same is hereinafter provided for.”

If Warrior was appellant’s employer, or one of his employers, the acceptance of workmen’s compensation benefits from the workmen’s compensation carrier of Warrior would preclude him, as a matter of law, from maintaining an action at common law for damages against such employer. Heibel v. Bermann, 407 S.W.2d 945 (Tex.Civ.App., Houston, 1966, no writ); Bell v. Humble Oil & Refining Co., 142 Tex. 645, 181 S.W.2d 569; LeJeune v. Gulf States Utilities Co., Tex.Civ.App., 410 S.W. 2d 44 (writ ref., n. r. e.) ; Jones v. Jeffreys, Tex.Civ.App., 244 S.W.2d 924, writ ref.

Was Warrior appellant’s employer? If so, what is there in the prior record that established this fact? We believe that appellant’s own petition in the prior compensation suit identifies his employers, one of whom is the appellee here, Warrior Constructors. In his prior petition, appellant alleges that he was employed by Austin Equipment Rental “and/or” Warrior Constructors. He then significantly states, “Prior to the above stated date (of injury), the defendant insurance corporations, the Travelers Insurance Company and the Fidelity and Casualty Company of New York, issued to plaintiff’s employers, policies of workmen’s compensation insurance and received premiums for those policies.” (Emphasis added).

Appellant claimed plural employers. Appellant then names these employers, using the conjunctive-disjunctive, as Austin Equipment Rental and/or the appellee, Warrior Constructors. Appellant’s prior petition claims employers, identifying them as both Austin Equipment and appellee, Warrior. The quoted language of appellant’s petition then establishes that the two compensation carriers issued to each of the two employers policies of compensation insurance. Both of these carriers paid compensation benefits to appellant pursuant to the judgment, one as the carrier for ap-pellee and one as the carrier for Austin Equipment Rental. As both have paid and as both have been released, it is unimportant which carrier paid on behalf of which employer. The appellant is precluded in the present action for common-law damages against one of his employers, the appellee, Warrior, from whose compensation carrier he has already collected.

Appellant, under his second point of error, asserts that although appellee’s compensation carrier might have paid compensation pursuant to the agreed judgment in the prior case, a defense to the present suit is not thereby established. Appellant argues that he was never adjudged to be an employee of appellee. He further asserts that the prior case left the matter open because of the “deliberate usage of the ‘and/or1 language whenever reference was made to the appellant’s employer.” This argument of the appellant is likewise answered by the record, including appellant’s own petition in the prior compensation action, in which he claimed and identified dual employers, one of whom was appellee, Warrior.

The Texas Supreme Court, in 1965, summarily stated the law governing our Texas Motion for Summary Judgment practices, pursuant to Texas Rules of Civil Procedure, 166A. In the case of Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., Tex., 391 S.W.2d 41, the court said: “The burden of proof is on the mov-ant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Tigner v. First Nat. Bank, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W. 2d 929 (1952). In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. Valley Stockyards Co. v. Kinsel, 369 S.W. 2d 19 (Tex.Sup.1963); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93 (1954). * * *”

Applying this test, we believe the case at bar presents a situation where a motion for summary judgment is particularly appropriate, that is, an instance where the other party’s own actions and authorship provide the conclusive proof required.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    George W. PRINCE et al., Appellants, v. NORTH STATE BANK et al., Appellees.
    No. 7787.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 26, 1968.
    John R. Gillham and W. T. Link, Clarendon, for appellants.
    Gibson, Ochsner, Harlan, Kinney & Morris and James H. Doores, Amarillo, for ap-pellees.
   CHAPMAN, Justice.

This suit was filed by George W. Prince and wife, Jesse Jean Prince, appellants, against North State Bank of Amarillo, a state banking corporation, and T. W. Rutledge, its President and Trustee in a deed of trust given to secure a note representing money borrowed by Prince from North State Bank. The action filed sought a restraining order and temporary and permanent injunction to restrain the sale under a deed of trust of certain real estate belonging to appellants. The basis of the suit to enjoin the sale was that the property representing the security was a homestead. A temporary restraining order was issued and the cause set for hearing on the application for temporary injunction. At such hearing the restraining order was dissolved. Subsequent thereto notices were posted and after due and legal time had elapsed T. W. Rutledge as Trustee sold the property on July 4, 1967 and a Trustee’s Deed was properly executed on the same day.

By appeal to this court from the order of the trial court dissolving the temporary injunction, appellants seek to litigate the homestead question and have the case reversed and rendered under such contention.

The only action taken by the trial court related to appellants’ application for a temporary injunction. The court dissolved it with the statement, in effect, that the parties would have to go to court to determine the fact question of a homestead, the suit having originated as an equitable proceeding seeking extraordinary relief of injunction.

This appeal is simply from an order denying temporary injunction. It is uncontro-verted that the sale sought to be enjoined has already taken place. The subject matter of this appeal is, therefore, moot. Mayatt v. Northam, 317 S.W.2d 592 (Tex.Civ.App.—Houston, 1958, no writ); Panos v. Foley Bros. Dry Goods Co., 198 S.W.2d 494 (Tex.Civ.App.—Galveston, 1946, no writ). We express no opinion upon the question of homestead, to be tried on its merits.

By supplemental brief appellants urge City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709 (1931); and Dawson v. First National Bank of Troup, 417 S.W.2d 652 (Tex.Civ.App.—Tyler, 1967) as authorities for reversal and rendition. Those cases are easily distinguishable from the instant case.

The latter citation was an original proceeding brought in the Court of Civil Appeals. The court enjoined the sale of the land pending the disposition by the court of the merits of the appeal pending in that court. The land in question there had not been sold and the Tyler Intermediate Court issued the injunction to protect its jurisdiction.

The former case by the Supreme Court, City of Dallas v. Wright, supra, was one in which the general jurisdiction of the trial court had been invoked by Wright and others to determine the validity of improvements assessments by the City of Dallas against property owned by Wright and others. The suit was filed under Art. 1219, Vernon’s Ann.Revised Civil Statutes, 1925, within the 10-day period provided therein, asking that the proceedings be set aside for errors alleged and for validity in the proceedings; claiming, inter alia, that their property received no benefits from the improvements and alleging certain other infirmities not apparent upon the record of the tax levy. They also alleged that the City was endeavoring to sell and assign the tax certificate, and that the whole proceedings and the sale of such certificate would constitute a cloud upon the title to their real estate.

Art. 1219 under which that suit was brought provides in part as follows:

“Any property owner against whom or whose property an assessment or reassessment has been made, may, within ten days thereafter bring suit to set aside or correct the same, or any proceeding with reference thereto on account of any error or invalidity therein, * * *.”

The Supreme Court held that where a case is brought under the terms of such article, and the power of the district court thereby invoked, then the full power of the court, including its equity power under the general principles of equity might be resorted to in order to administer justice between the parties.

The property here sought to be enjoined from sale under equitable proceedings having already been sold, the only question now before us is moot.

The appeal is dismissed.


author: NORTHCUTT, Justice.

text:
    Ken SMITH, Individually, and on behalf of his wife, Cletus Smith, Appellants, v. Sam CAPLAN, Appellee.
    No. 7789.
    Court of Civil Appeals of Texas. Amarillo.
    March 4, 1968.

      Splawn & Maner and Don Reed, Lubbock, for appellants.
    Key, Carr, Carr & Clark and Donald M. Hunt, Lubbock, for appellee.
   NORTHCUTT, Justice.

Ken Smith, plaintiff in the trial court, brought suit against Sam Caplan seeking damages for injuries suffered by his wife, Cletus Smith, on September 2, 1966, when she and their minor son entered the defendant’s amusement park for the purpose of said minor child’s riding the children's amusement rides that defendant, Sam Cap-lan, operated under a lease from the city of Lubbock.

The case was tried before a jury, but at the time the plaintiff rested his case the defendant moved for an instructed verdict, and thereafter the court granted such motion withdrawing the case from the jury and entered judgment that plaintiff take nothing by his law suit. From that judgment, appellant perfected this appeal. Ken Smith will hereafter be referred to as appellant and Sam Caplan as appellee.

This appeal is presented upon two assignments of error. The first point is that the court erred in granting the instructed verdict because plaintiff’s evidence affirmatively raised issues of fact which showed a prima facie case of negligence on the part of the defendant. The second point is that the court erred in granting the instructed verdict because plaintiff’s evidence affirmatively raised the issue of fact sufficient to present a prima facie case under the doctrine of res ipsa loquitur.

We overrule the first point of error as we are unable to find any evidence upon which a jury could base a finding that appellant’s injury was caused by the negligence of appellee. Appellant pleaded that appellee was negligent in that the spider or the individual hobbyhorse movement lever was not securely bolted to the frame so that the same would not slip; in failing to inspect the hobbyhorse spider; in failing to warn the plaintiff that the hobbyhorse and its movement equipment was not secured to its frame; and in maintaining and using a defective merry-go-round. The evidence shows the machine was thoroughly inspected and nothing could be found to indicate the machine was not in perfect working order. The machine continued to be used and they were unable to find any defects.

In informing appellee that appellant would rely on the doctrine of res ipsa loquitur as well as general negligence, the appellant pleaded two specific acts of negligence to sustain the plea of res ipsa loqui-tur. We can not assume without some proof that the machine was defective. Mrs. Smith did not know what injured her foot and neither did anyone else. We think it is so well recognized in this state that the rule of res ipsa loquitur is not one of substantive law, but is a rule of evidence only, that no citations are necessary. In considering the doctrine of res ipsa loqui-tur, it is not the naked injury but the manner and attending circumstances of the accident that justifies the application of the doctrine in an action for the negligent breach of an ordinary duty. Consequently, the applicability of the doctrine must develop upon the peculiar facts and circumstances of each individual case. It is stated in Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659 (Comm. of App. approved) as follows:

“It is now well settled, however, in this state that in a proper case for the application of the rule the fact of the occurrence warrants an inference of negligence but does not compel it; that the presumption created by the happening, whether termed a presumption or an inference, is rebuttable. The effect of the application is not to shift the burden of proof to the defendant, but only the burden of going forward with the evidence. It is stated in 45 C.J. p. 1219, that the general rule as affecting burden of proof is that where plaintiff has established a presumptive or prima facie case of negligence, by virtue of the doctrine of res ipsa loquitur, it is incumbent upon defendant, if he wishes to avoid the effect of the doctrine, to introduce evidence to explain, rebut, or otherwise overcome the presumption or inference that the jury complained of was due to negligence. The rule thus stated is firmly established in this state. Washington v. M[issouri], K. & T. Railway Co., 90 Tex. 314, 38 S.W. 764; McCray v. [Galveston, H. & S. A.] Ry. Co., supra [Tex.Civ.App., 32 S.W. 548; Id., 89 Tex. 168, 34 S.W. 95]; Gulf, C. & S. F. Ry. Co. v. Dunman (Tex.Com.App.) 27 S.W.2d 116, 72 A.L.R. 90; Ischar v. West Texas Utilities Co. (Tex.Civ.App.) 54 S.W.(2d) 842 (writ refused); Gulf, C. & S. F. Ry. Co. v. Johnson, 92 Tex. 591, 50 S.W. 563.”
******
“It is apparent from the principles recognized and established by the Supreme Court as pointed out in the foregoing discussion of the nature and effect of the rule as interpreted by the decisions of this state that there are several conditions essential to make applicable the ‘res ipsa’ rule. An essential allegation necessary to warrant its application in a case in which defectiveness in equipment is alleged is that the management and control of the equipment which produced the injury shall be with the defendant exclusively. The theory is that plaintiff is not in a position to show the particular circumstances which caused the equipment to operate to his injury, and that defendant possesses the superior knowledge or means of information as to the cause of the defect, if any; and should therefore be required to produce the evidence in explanation. McCray v. [Galveston, H. & S. A.] Ry. Co., supra; Simmons v. [Terrell] Light Co., supra [Tex. Com.App., 12 S.W.2d 1011].”

Appellee had full control of the hobbyhorse but appellee showed by sufficient evidence that the machine was in good order, and there is nothing in this record to show that there is any more likelihood of the negligence of appellee causing the injury than there is that the negligence of appellant caused the injury. Mere proof of an injury, in the absence of proof of the manner in which it was received and the circumstances attending the occurrence thereof, is insufficent to warrant an inference of negligence on the part of the defendant as to invoke the res ipsa loquitur doctrine. Alley v. Texas Electric Service Co., Tex.Civ.App., 134 S.W.2d 762; Texas and Pacific Coal Co. v. Kowsikowsiki, 103 Tex. 173, 125 S.W. 3. The only evidence there is in this record, only from supposition, is that the hobbyhorse was in good condition. In other words, the facts surrounding and leading to the accident from which a jury might reasonably infer negligence in the appellee are not shown. The meager facts shown are as consistent with the hypothesis that the injuries were caused by the negligence of the appellant as the negligence of the appellee. Alley v. Texas Electric Service Co., supra; Davis v. Castile, 257 S.W. 870, (Comm. of App.) 30 Tex.Jur. 805. A verdict based upon the evidence herein could only be based upon conjecture and speculation.

The doctrine of res ipsa loquitur does not apply where the evidence leaves it uncertain whether the negligence of the victim or that of the defendant was the approximate cause. The doctrine has no application where the facts shown are equally consistent with the hypothesis (1) by the negligence of the injured or (2) by that of the defendant or (3) by that of both the injured and the defendant.

The appellee certainly was not called upon to account for the conduct of the appellant. Houston Lighting & Power Co. v. Taber, Tex.Civ.App., 221 S.W.2d 339 (n. r. e.); Worth Steel Corp. v. Gartman, Tex.Civ.App., 361 S.W.2d 426 (n. r. e.).

It is stated in Longoria v. Violet Gin Company et al.,. Tex.Civ.App., 309 S.W.2d 484 (n. r. e.) as follows:

“The evidence was insufficient to invoke the doctrine of res ipsa loquitur, in that it fails to show that the injury could only have occurred by the negligence of Jerome Jalufka or one of his agents, employees or servants. McClish v. R. C. Young Feed & Seed Co., Tex.Civ.App., 225 S.W.2d 910; Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791; Comet Motor Freight Lines v. Holmes, Tex.Civ.App., 175 S.W.2d 464; Montgomery Ward & Co. v. Sewell, 5 Cir., 205 F.2d 463, 38 Am.Jur. 996; Alley v. Texas Electric Service Co., Tex.Civ.App., 134 S.W.2d 762; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.”

Under this record the only way that appellee could in any manner have been responsible for the injury to appellant would have been because of a defective hobbyhorse and the only evidence of this condition is that it was in good condition. The law is well settled in Texas that where the evidence shows that an accident may have happened as a result of one or two or more causes and is not more reasonably probable that it was due to the negligence of the defendant than to any other cause, the doctrine of res ipsa loquitur does not apply. Benkendorfer v. Garrett, Tex.Civ. App., 143 S.W.2d 1020 (error dismissed and judgment correct); Robertson v. Southwestern Bell Telephone Co., Tex.Civ.App., 403 S.W.2d 459 (n. w. h.). We do not believe this record justifies the doctrine of res ipsa loquitur to be applied herein. Judgment of the trial court is affirmed.


author: BRADY, Commissioner.

text:
    Esther BROOKS et al., Plaintiffs-Appellants, v. LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF ST. LOUIS COUNTY, Defendant-Respondent.
    No. 32916.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.
    Sylvan Agatstein, Jerome Raskas, St. Louis, for plaintiffs-appellants.
    John J. McAtee, Clayton, for defendant-respondent.
   BRADY, Commissioner.

Plaintiffs in this cause were residents of Elmwood Park, a residential area in St. Louis County encompassed within an Urban Renewal Plan (hereinafter referred to as the Plan) developed and supervised by defendant operating under the provision of §§ 99.300-99.660, RSMo 1959, V.A.M.S. The petition upon which the case was tried was filed March 26, 1965. Trial on the merits began in June of 1965, and in December of that same year the trial court rendered its judgment denying plaintiffs any relief.

Plaintiffs first appealed to the Supreme Court of this State on the grounds defendant was attempting to take their property by condemnation without due process of law contrary to the 14th Amendment to the Constitution of the United States and in violation of the Constitution of this State. That court held the only issues preserved for review went to whether the Plan adopted by defendant met the requirements of § 99.430, RSMo 1959, V.A.M.S., and in so determining it was not necessary to decide the constitutional questions plaintiff attempted to preserve for review. See Brooks v. Land Clearance for Redevelopment Auth. of St. Louis County, Mo., 414 S.W.2d 545. Accordingly, the constitutional questions pass from this appeal which was then transferred to this court for decision.

As is apparent from the petition and as stated by the Supreme Court in its opinion transferring this cause, plaintiffs’ theory is that the Plan prepared for Elmwood Park by defendant did not comply with the requirements of the applicable statutes in that it failed to set forth a feasible method for relocation of the families to he displaced from this area as required by § 99.430(7), RSMo 1959, V.A.M.S. The prayer was twofold: First, for a declaratory judgment decreeing the Plan null and void as not being in compliance with the applicable statute; and Second, the defendant be temporarily restrained from proceeding to take any action under such Plan including the commencement of condemnation actions or the prosecution of such actions already filed seeking to acquire plaintiffs’ lands and, after hearing, such injunction be made permanent. There was no prayer for damages as a result of defendant’s allegedly improper action.

It is unnecessary for us to further burden this opinion with facts gleaned from the voluminous transcript and numerous exhibits. With the candor both expected and required of an officer of the court plaintiffs’ able counsel has admitted none of the plaintiffs still own the property which it is contended the Plan improperly takes from them. The condemnation actions with respect thereto have been finally concluded and the property thus acquired, or voluntary sales have been negotiated and closed.

With reference to the prayer for a declaratory judgment, it is well settled law that when a declaratory judgment concerning the powers and duties of a governmental agency is sought the court must he presented with a “justiciable controversy” admitting of specific relief by way of a decree or judgment conclusive in character and determinative of the issues involved. § 527.-010 and § 527.020, RSMo 1959, V.A.M.S.; City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411; City of Creve Coeur v. Creve Coeur Fire Protection Dist., Mo., 355 S.W.2d 857; St. Louis Housing Authority v. City of St. Louis, 361 Mo. 1170, 239 S.W.2d 289. Moreover, it is necessary for the plaintiffs to have a legally pro-tectable interest at stake. Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246. Since the defendant admittedly is now in possession and the owner of the lands in Elmwood Park previously owned by the plaintiffs, it is obvious the latter have no legally protectable interest at stake. It is equally obvious that no declaratory judgment entered in this case could grant them any specific relief. Accordingly, there is no “justiciable controversy” as required by our declaratory judgment act, § 527.010 et seq., RSMo 1959, V.A.M.S. The issue is moot as to these plaintiffs.

The same must he held when considering plaintiffs’ plea for a restraining order and for an injunction. Injunctive relief seeks to prevent future mischief, not to restrain acts that have already occurred. Pollard v. David, Mo., 421 S.W.2d 296. It is clear from the fact defendant already has title and possession to plaintiffs’ lands any judgment rendered in response to the prayer for injunctive relief “ ‘could not have any practical effect upon any then existing controversy.’ ” Euclid Terrace Corp. v. Golterman Enterprises, Inc., Mo. App., 327 S.W.2d 542, as quoted with approval in Pollard v. David, supra.

The cause is moot. The appeal is dismissed.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The appeal is dismissed.

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


author: HOGAN, Presiding Judge.

text:
    Kathleen M. TICKNER, Plaintiff-Respondent, v. UNION INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 8685.
    Springfield Court of Appeals. Missouri.
    Feb. 20, 1968.

      David Donnelly, David E. Wilhite, Don-nelly & Donnelly, Lebanon, for defendant-appellant.
    Russell G. Clark, Allen, Woolsey & Fisher, Springfield, for plaintiff-respondent.
   HOGAN, Presiding Judge.

This is an action for a declaratory judgment to determine whether or not the plaintiff has coverage as an omnibus insured under the defendant’s combination automobile liability policy issued to one Charles A. Sherer and his wife, Maurine Sherer. The trial court has ruled that there is coverage, and the insurer has appealed.

The facts have been stipulated. On December 30, 1963, the plaintiff, her husband and her sister-in-law, Mrs. Sherer, were en route to Jackson, Mississippi, in Mrs. Sherer’s car. Mrs. Tickner, the plaintiff, was driving, with Mrs. Sherer’s express consent and permission. An accident occurred, and Mrs. Sherer sustained fatal injuries. Mrs. Sherer’s husband then filed a wrongful death action against Mrs. Tick-ner in Camden County, Missouri, and Mrs. Tickner called upon the insurer to appear and defend her under Mrs. Sherer’s policy. The insurer refused and this action followed.

The defendant insurer’s Combination Automobile Policy was issued to Mrs. Sherer and her husband, Charles A. Sherer, in Missouri on May 15, 1963, and was in force when the fatal accident occurred. It contains, among others, the following provisions:

1. Under “Insuring Agreements”:
“ * * * Coverage A — To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and arising out of the ownership, maintenance or use of the automobile.”
2. Under “Definition of Insured” (omnibus clause):
“(a) With respect to the insurance for bodily injury liability * * * the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * * ” [Then follow some qualifications not material here.]
3. Under “Exclusions”:
“This policy does not apply: * * * (d) under Coverage A, to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of (1) domestic employment by the insured, if benefits therefor are in whole or in part either payable or required to be provided under any workmen’s compensation law, or (2) other employment by the insured, or (3) to bodily injury to (1) the insured’s spouse or any relative of either, if such spouse or relative is a resident of the same household as such insured, or (2) the insured named in Item 1 of the declarations * *
4. Under “Severability of Interests— Coverages A and B”:
“The term ‘the insured’ is used severally and not collectively, but the inclusion herein of more than one insured shall not operate to increase the limits of the company’s liability.”

The problem, so to speak, is to identify “the insured” within the meaning of paragraph (d) of the exclusions.

Preliminarily, we may consider and summarily dispose of two formal aspects of the appeal. First, we have primary appellate jurisdiction, although Mr. Sherer prays damages of $50,000.00 in the wrongful death action which he has filed against the plaintiff. The relief sought in this case was a declaration that there is coverage if plaintiff’s liability in the wrongful death action is established, but the amount of liability will remain contingent no matter how this case is resolved. The fact that an amount in excess of our jurisdictional limit may become involved is not sufficient to vest original appellate jurisdiction in our Supreme Court, and the appeal is properly lodged here. Republic Insurance Co. v. Hearn, Mo., 414 S. W.2d 549, 551 [1,2]; Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 404-405, 251 S.W.2d 246, 249 [3-5]. We also conclude, as the parties have assumed, that the policy must be construed according to the law of Missouri. The question of a choice of law involves several considerations, but we will not extend this opinion by discussing them at length. Mr. Sherer’s rights ex delicto are governed by the law of Mississippi, Hall Motor Freight v. Montgomery, 357 Mo. 1188, 1195, 212 S. W.2d 748, 753, 2 A.L.R.2d 1292, 1297, and although the policy provides coverage “while the automobile is within the United States of America, its territories, possessions, or Canada,” and thus contemplates performance in many jurisdictions, the policy was issued in Missouri, and in the final analysis the only practicable choice of law is that of the place of execution. General Accident Fire & Life Assurance Corp. v. Ganser, 2 Misc.2d 18, 150 N.Y.S.2d 705, 708-709 [1-5]; Leflar, Conflict of Laws, § 132, pp. 249-250 (1959). See also Bartlett & Company, Grain v. Merchants Company, 5 Cir., 323 F.2d 501, 505 [13-

Mrs. Tickner, maintaining that she has coverage in this case as an additional or omnibus insured, contends that for exclusionary purposes “the insured” means only the person claiming coverage. Very broadly stated, her argument is that she, as permittee, is an insured under the omnibus clause; that the severability provision was intended to, and does, compel consideration of each “insured” separately and independently of every other insured for exclusionary purposes, and therefore the “family” or “household” exclusion in this case refers to and excludes only her family, spouse or resident members of their household, and not that of the named insured. Thus, plaintiff maintains she has coverage as to Mrs. Sherer, although she would presumably not have coverage had her own husband been injured while she was driving.

In part, the respondent bases this argument on cases dealing with the so-called employee exclusion. Most automobile liability policies exclude bodily injury to any employee of “the insured” arising out of and in the course of his employment. Inevitably, the question has arisen: Which employer’s employees are precluded from recovery by this exclusion? Many courts, and at least two very careful students of the field, take the view that for exclusionary purposes the unqualified words “the insured” mean only the person claiming coverage, and therefore the employee exclusion denies coverage to any particular insured, named or omnibus, only with respect to his own employees. This follows, so it is argued, because the omnibus provisions define “the insured” to include not only the named insured but his permit-tees, etc., the exclusion refers only to “the insured” not to “the named insured” and the severability provisions compel consideration of each insured separately and independently for the purpose of ascertaining the coverage of each. Thus construed, the policy provides coverage for an omnibus insured for injury to an employee of the named insured, but provides no coverage for injury to an employee of the omnibus insured.

Some courts have adopted a similar construction of the provisions excluding bodily injury to the insured or any member of the insured’s family residing in the same household, holding that the family or household exclusion denies coverage only to the insured, named or omnibus, who is claiming coverage and the resident members of his family. So in Farmers Insurance Exchange v. Frederick, 244 Cal.App. 2d 776, 53 Cal.Rptr. 457, 459-462 [2], the court held there was bodily injury coverage for the permittee for injury to the named insured; the same conclusion was reached in a wrongful death action in State Farm Mutual Automobile Ins. Co. v. Madison, 11 Ill.App.2d 206, 136 N.E.2d 533, on the ground that the words “the insured” in the family or household exclusion were ambiguous. Nevertheless, our courts, and many others, reject this construction and hold that there is no coverage for an omnibus insured for injury to the named insured or a resident member of the named insured’s household. The Gabel case, in fact, rules squarely on the point presented here, for in the Gabel case coverage was sought for a permittee for injury to a member of the named insured’s household. If the merits of this appeal depended solely upon the construction of the words “the insured” in the family or household exclusion, we would have to hold that there is no coverage for Mrs. Tickner for injury to Mrs. Sherer.

There is another and additional reason, however, why we must rule there is no coverage in this case. The policy before us not only excludes injuries to “the insured’s spouse or any relative of either, if such spouse or relative is a resident of the same household as such insured” ; it goes further and specifically excludes bodily injury to “(2) the insured named m Item 1 of the declarations * * (Emphasis added.) On the specimen form, which was all that was filed here, “Item 1” calls for “Named Insured and Address.” It is stipulated that the policy was executed to both Charles A. and Maurine Sherer. Both are named insureds. In our view, it would scarcely be possible to exclude claims for injury to the named insured in more specific language.

It is further argued that subpara-graph (3) of paragraph (d), above, does not exclude fatal injuries because the word “death” is not repeated after the words “ * * * or (3) to bodily injury to” etc., and because the word “death” specifically appears in certain other exclusionary provisions of the policy. This argument is strained and without merit. Davis v. Liberty Mutual Insurance Co., 8 Cir., 308 F.2d 709, 710-711.

For the reasons indicated, the judgment must be reversed. It is so ordered.

STONE, and TITUS, TT-, concur.

      . Quoted as No. 2, above, under “Definition of Insured.”

      . Quoted as No. 4, above, “Severability of Interests.”

      .Quoted as No. 3, beginning with the words “ * ⅜ * or (3) to bodily injury to (1) the insured’s spouse or any relative,” etc.

      . As expositive of this view, see Shelby Mutual Insurance Co. v. Schuitema, Fla.App., 183 So.2d 571, 573-574; Risjord and Austin, “Who is ‘The Insured’?” 24 U.Kan.City L.Rev. 65 (1955), and the same authors’ “Who is ‘The Insured’ Revisited,” 28 Ins. Counsel J. 100 (1961).

      . Pepsi-Cola Bottling Co. of Charleston v. Indemnity Ins. Co., 4 Cir., 318 F.2d 714, 715-716; Western Freight Ass’n. v. Aetna Casualty & Surety Co., D.C.Pa., 255 F.Supp. 858, 861 [3] [4]; Anno., 50 A.L.R.2d 78, 97, § 6 [a] (1956) and Supp. (1967) pp. 105-106; Risjord and Austin, supra, 100 Ins. Counsel J. at 102-103.

      . Gabel v. Bird, Mo., 422 S.W.2d 341, 343-344 [3]; Perkins v. Perkins, Mo.App., 284 S.W.2d 603, 610-611; Hogg v. State Farm Mutual Automobile Insurance Co., 276 Ala. 366, 162 So.2d 462; Pearson v. Johnson, 215 Minn. 480, 10 N.W.2d 357; State Farm Mut. Auto. Ins. Co. v. Cocuzza, 91 N.J.Super. 60, 219 A.2d 190, 192-193 [2-4].


author: CLEMENS, Commissioner.

text:
    Michael SITA, Employee, Respondent, v. FALSTAFF BREWING CORPORATION, Employer, and Hartford Accident and Indemnity Company, Insurer, Appellants.
    No. 32920.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.

      Edmund J. Barker, St. Louis, for appellants.
    Max M. Librach and Gene R. Spengel, Jr., St. Louis, for respondent.
   CLEMENS, Commissioner.

It could be said this case poses the question, “Just how many beers can a man handle?”

The employee, Michael Sita, a beer truck driver, got a $5,555 workmen’s compensation award for permanent back injuries brought on by an abnormal strain while lifting five cases of beer up to a three-foot platform. The Industrial Commission and the Circuit Court upheld the award. The employer, Falstaff Brewing Corporation, and its insurer, Hartford Accident and Indemnity Company, appeal, contending there was no “accident” — and even if so, no causal connection with the disability. Bearing in mind our respective roles —that the Commission determines the credibility of witnesses and the weight of evidence, and we determine only questions of. law — we state the evidence consistent with the award.

Mr. Sita, 59, had worked ten years for Falstaff delivering beer to its retail customers. He usually moved beer from the beer truck by loading five 40-lb. cases onto a two-wheeled, 70-lb. hand truck and wheeling it to the customer’s stockroom. This time he had an order to deliver fifteen cases to a tavern in St. Louis County. On the street side of the tavern there was a parking area and a platform, or dock, atop a retaining wall. Thus, the floor level of the tavern was about three feet higher than the parking area. Mr. Sita tried to park his truck alongside the dock so he could move the beer cases directly from his beer truck to the top of the dock. That was how he had delivered beer to the tavern before. But on this day three parked cars were in his way. He found an open space between the cars where a foot-high stone block, or step, rested on the ground against the dock. Mr. Sita picked this as his route of delivery. He took five cases off the beer truck, stacked them on the hand truck, and then wheeled it over against the dock and stepped up on top of the dock. He bent over from the waist, grabbed the handles of the hand truck, and with his legs straight and stiff pulled up and back toward himself. He got the loaded hand truck up onto the stone block and set himself for the next pull, at least two feet up from the stone step to the dock. He tried but “just didn’t make it.” Asked why, Mr. Sita said: “Just strained too much. I didn’t make it. I set it back, then tried it again. That was it. That was the end of the day for me.” He explained: “I couldn’t do any more. Pain hit me in the back and that was it.” As to this being an unusual incident, Mr. Sita said he had often pulled a loaded hand truck up over ordinary steps, say eight or ten inches high, but never before did he have to bend over so low or pull it straight up as high as this time.

Falstaff and Hartford first contend this evidence does not show a com-pensable accident. They base this argument on “contradicting and conflicting” parts of Mr. Sita’s testimony. We will deal with that later. We must consider the evidence in a light consistent with the award. (Cross v. Crabtree, Mo.App., 364 S.W.2d 61 [2, 3].) So considered, we find the evidence ample to support the Industrial Commission’s finding that Mr. Sita “sustained an unexpected and unusual strain constituting an accident.” We báse this on Crow v. Missouri Implement Tractor Co., Mo. (banc), 307 S.W.2d 401 [1], the first case to hold that an unusual or abnormal strain — without a slip, a fall, or external force — is a compensable accident. See, also, Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292 [10, 11].

In opposition to this finding, Falstaff and Hartford cite Hall v. Mid-Continent Mfg. Co., Mo.App., 366 S.W.2d 57, and Ousley v. Hawthorn Co., Div. of Kellwood Co., Mo.App., 397 S.W.2d 719. Neither case is helpful since each concerned a claim where the Industrial Commission found the facts contrary to the claimant’s contention of unexpected and unusual strain. Here, the converse prevails. They also cite Baker v. Krey Packing Co., Mo.App., 398 S.W.2d 185, and Flippin v. First Nat. Bank of Joplin, Mo.App., 372 S.W.2d 273. In each case — contrary to ours — the claimant’s most favorable evidence failed to show his strain was unexpected or unusual. So, not one of the four cases is in point.

The main thrust of appellants’ argument is that since the claimant’s testimony was contradictory and conflicting, it was self-destructive; hence, there was no substantial evidence left to support a finding of abnormal strain. Appellants rely on the general rule that a fact cannot be proved by the contradictory testimony of a witness, They would broaden this rule to embrace every part of a witness’s testimony when he contradicts himself on any fact. That is not the law. Appellants quote from Foerstel v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 792: “ * * * ‘where a party relies on his own testimony alone to prove a material issue and his testimony thereon is so contradictory and conflicting that it lacks probative force and is self-destructive and where there is no other fact or circumstance tending to show which version of the evidence is true, no case is made for the jury.’ ” We emphasize the word “material” because that limits the rule to the essential elements of a plaintiff’s case. Thus limited, the rule applies to a claimant’s evidence in compensation cases. In Welborn v. Southern Equipment Co., Mo., 395 S.W.2d 119 [6], the rule was applied to the essential element of giving notice of the accident. In Smith v. American Car & Foundry Div., etc., Mo.App., 368 S.W.2d 515 [8, 9], we applied this rule of self-destructive testimony to a claimant’s burden of showing causation, saying: “It is equally well settled that burden is not carried when the claimant shows that the injury complained of resulted either from one or the other of two causes when the employer could be liable only if one were found to be the cause.” From these cases it will be seen that the courts are speaking about self-destructive evidence on a material, essential element of a claimant’s case, not conflicting evidence on a non-essential fact. We consider appellants’ argument in that light.

Their charge of contradictions by Mr. Sita concerns the heights of the step and the dock, and also whether he was hurt on the first or last of three trips up the dock on the day of his injury. About the dock, Mr. Sita first estimated it was at least forty inches high. On cross-examination he said he was “guessing” about the height, that the first step might have been only twelve inches or less and that from the step up to the dock might also have been twelve inches. He also admitted that in a previous tape-recorded statement he had described the first step as “ordinary high.” Mr. Sita explained he had never measured these heights and had not seen them for almost two years after his injury. He was certain, however, that he had never before tried to lift a loaded hand truck as high as he did this time. Further, when cross-examined about how many loads of beer he delivered to the tavern on the day he was hurt, Mr. Sita first said there were three 5-case loads and he was injured while moving the third load. Later he recalled it was the first load. Still later he said he was confused and did not remember which load it was.

We conclude that this contradictory testimony did not destroy an essential element of claimant’s case. The issue was whether he suffered an abnormal strain. Regardless of the precise heights of the step and the dock, each was higher than the usual objects over which Mr. Sita usually lifted his loaded hand truck — and this lift required more-than-usual physical exertion, applied from an abnormal, bent-over position. This is also true of appellants’ argument about whether Mr. Sita was injured on the first or third trip. This does not affect the essential element of the occurrence being unusual. There was substantial evidence that in ten years at this work Mr. Sita had never before performed such strenuous lifting.

These contradictions in Mr. Sita’s testimony could affect his credibility. That, however, is considered only by the Industrial Commission, not by this court. Merriman v. Ben Gutman Truck Service, Inc., supra, at 392 S.W.2d 292 [4], And we may consider that the Commission had before it the favorable findings of the Referee. Hall v. Spot Martin, Inc., Mo., 304 S.W.2d 844 [2]; Miranda v. American Refrigerator Transit Co., Mo.App., 392 S.W.2d 413 [5]. Here, the Referee stated: “I further find that the employee’s testimony was given in a straightforward and convincing manner which I found to be credible and which I find was not impeached by any other evidence in spite of the fact there were some minor discrepancies * *

We conclude, therefore, that there was substantial evidence to support the Industrial Commission’s finding that the claimant “sustained an unexpected and unusual strain constituting an accident.”

For their last point appellants contend there was no evidence to link Mr. Sita’s accident with his disability, that the evidence merely showed his disability could have resulted either from the accident or from natural causes. Appellants rely on Welker v. MFA Central Co-op., Mo.App., 380 S.W.2d 481 [6]. There, the only evidence to link the claimant’s fall with his herniated disc was a medical opinion that the injury could have “resulted from one of two causes, for one of which, and not the other, appellant is liable.” That is not so here.

Appellants base their argument on two answers given by claimant’s physician concerning causation. On direct examination Dr. William A. Stephens said Mr. Sita’s injury could have caused his disability. On cross-examination he also said such disability could occur without an accident. But appellants overlook two important factors. First, the evidence was that Mr. Sita’s accident did produce his disability. This, because Dr. Stephens testified that the disability “resulted” from the accident.

Further, Mr. Sita had testified that as he tried to lift the load from the step up to the dock he had sudden pain — like an electric shock — just below his belt line. He made no more deliveries that day. The next morning his pain was so severe he could not get out of bed. After a few weeks of continuous, conservative medical treatment he was hospitalized for diagnosis, including a myelogram; still later he returned for a laminectomy, to remove a vertebral spur impinging on a spinal nerve. He is still unable to work. The sudden onset of this pain and disability, and its continuous persistence, was substantial evidence of causation even without expert medical opinion of causation. And that is the second factor appellants have overlooked. Smith v. American Car & Foundry Div., etc., supra, at 368 S.W.2d loc. cit. 521; Bertram v. Wunning, Mo.App., 385 S.W.2d 803 [2].

Since the award to claimant was supported by substantial competent evidence, the judgment of the Circuit Court is affirmed.

PER CURIAM.

The foregoing opinion of CLEMENS, G, is adopted as the opinion of this court. Accordingly, judgment is affirmed.

ANDERSON, P. J., RUDDY, J., and GEORGE W. CLOYD, Special Judge, concur.


author: TOWNSEND, Commissioner.

text:
    Irvin FELDMANN, Employee, Respondent, v. DOT DELIVERY SERVICE, Employer, and Bituminous Casualty Corporation, Insurer, Respondents, Brueckman Cooperage Company, Employer, and National Automobile & Casualty Insurance Company, Insurer, Appellants.
    No. 32852.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.

      R. C. Reis, St. Louis, for appellants.
    Gunn & Gunn, St. Louis, for respondent, Irvin Feldmann.
    Albert I. Graff, Frank J. Lahey, Jr., Malcolm I. Frank, St. Louis, for respondents, Dot Delivery Service, employer, and Bituminous Casualty Corporation, iftsurer.
   TOWNSEND, Commissioner.

This Workmen’s Compensation case presents another illustration of the loaned employee problem. The Referee entered an award against the general employer and the special employer (and their respective insurers) as joint employers for healing period and for permanent partial disability of the claimant; he found that $2185 had been paid to the claimant for temporary total disability by the insurer of the general employer. Upon review the Industrial Commission found as a fact that the claimant was in the exclusive employ of the special employer at the time of his injury. The final award recites that claimant was not in the employ of the general employer at the time of injury; therefore compensation against the general employer and its insurer was denied. The recited compensation payable under the final award was for $3670 less the sum of $2185 previously paid by the insurer of the general employer. The special employer and its insurer appealed to the Circuit Court which sustained the final award of the Commission. The special employer and its insurer appear here as appellants and the general employer as respondent.

The employer parties to this proceeding are Andrew G. Hart operating under the name of Dot Delivery Service and engaged in local drayage and trucking and Brueck-man Cooperage Company, a corporation, carrying on the business of buying, selling and reconditioning used steel drums and wooden barrels. For the sake of brevity the parties will be hereafter referred to respectively as Dot and Brueckman.

In 1956, Dot and Brueckman orally entered into the present controversial arrangement involving the haulage of barrels for Brueckman. Dot bought from Brueck-man a truck owned by the latter, removed the barrel body therefrom and installed it on a new truck chassis purchased by Dot. At the time of claimant’s accident the name “Brueckman” still appeared on the body; elsewhere the Dot name appeared on the side of the truck. The agreement called for Dot to furnish a truck and driver to Brueckman at a fixed hourly rate. Fuel and oil and repairs were furnished by Dot. Brueckman paid for eight hours at the hourly rate in respect of any day during which the truck was in its service for any length of time, but if the truck were used at no time on a particular day there was no charge for that day. There were times when the driver at the close of a day would telephone Dot that Brueckman would not use the truck the following day; in such event the driver (present claimant) would work on his farm the following day but occasionally he would come in to Dot and make city deliveries for Dot. In the latter case he did not use the truck which otherwise he would drive on the Brueckman business. That truck was normally housed overnight at the Brueckman premises, and the driver began his day there at 8 a. m. The driver received his Dot pay check every Friday night at the Dot garage; income withholding taxes and social security taxes were withheld by Dot. Vacation pay was paid to the driver by Dot. The truck which was allocated to Brueckman business by Dot was never used for any other purpose. The arrangement with Brueckman was the only one of its nature into which Dot entered. Mr. Hart testified that because of one driver’s personal differences with Brueckman’s superintendent Hodge he removed that driver from the Brueck-man job at the insistence of Hodge and that he (Hart) then filled in on the driver’s job himself as a substitute. After claimant was hired by Dot, Hart rode the job with claimant for a few days in order “to see if he could drive”. When Mr. Hart was acting as a substitute, he was instructed to make stated deliveries and pick-ups and to stop by certain companies on the way in or out to see if they had any drums to pick up. While not instructed the route to follow, “he [Hodge] would tell you what accounts to go to first”. In picking up barrels he was given definite instructions as to the kind of barrels to be picked up and as to a kind not to be picked up because of nails in the body of the barrels. He stated further that claimant was hired for the specific job of driving for Brueckman and that Brueckman “wanted one driver at all times because it was beneficial to them going around and learning these pick-ups and stops and what type of drums to get” — that Brueckman insisted that it have a familiar driver “That’s around the job every day”. When a delivery or pick-up necessitated the payment of a bridge toll, the amount of same was furnished to the driver in cash by Brueckman at the beginning of a trip. Mr. Hart testified that otherwise than as above stated he had no “control or jurisdiction of the use of that truck when it was given to Brueckman Cooperage” and no control or supervision of the driver as to what he did or “anything about his working”.

Testimony of the claimant: He did the hauling at Brueckman for five years or more. The work was fairly steady; sometimes he worked five days a week and at other times only three or four days. When he went to work for Brueckman on any particular day he never received any instructions from anybody at Dot as to what he had to do. He received his orders from the superintendent of Brueckman either to make deliveries or to make pick-ups, “whichever comes first”. When he entered upon his employment Mr. Hart instructed him to follow Brueckman orders in making deliveries or pick-ups, — “Whatever they told me to do. That they were to give me my orders when I went down there to pick up”. As to his actual operations claimant testified:

“Q. Now, they gave you an invoice for each stop you were going to make and then you figure out this routing or this figuring yourself?
A. All truck drivers do that.
Q. Did Hodge [superintendent] ever tell you that you follow any particular route through the city or take any particular streets?
A. No.
Q. Did he do anything more than just say here are some invoices, you go out and deliver them?
A. It’s more the way it went.
Q. Now, on pick-ups, were there any particular instructions about how you were to handle that?
A. Well, it was stacked the same way
Q. And that would be the extent of the instructions that you got from the Brueckman Cooperage?
A. Unless something special come up and they wanted you to do something particular.
******
Q. Did Brueckman ever tell you, give you any instructions whatsoever with regard to how you were to drive that truck or handle the truck?
A. Why, no. They never told me what street.
******
Q. While you worked for Brueckman Cooperage at any time did anybody other than the Brueckman Cooperage people give you instructions on what to do?
A. Well, any time the truck driver is leased out to somebody, they take orders from that person. That’s what you would do. If I come up to work for you, I take orders from you. If I come over, if I come over to work for him, I’d naturally have to take orders from him.
Q. And during that time you take no orders from Dot Delivery Service or anybody connected with Dot?
A. Wouldn’t have any occasion to.
******
Q. They [Brueckman] had complete control and jurisdiction over what you had to do while you were putting in time for that company?
A. For that day, yes.
* *****
Q. Did you ever have any agreement with the Brueckman Cooperage, any— let’s put it this way. Did you have any discussion with the Brueckman Cooperage about working for them directly?
A. No.
Q. There were no agreements of any kind between you and Brueckman that you were going to work for them?
A. No. You mean like on my days off or anything?
Q. No. While you were driving that truck.
A. No.”

When claimant arrived at the Brueck-man plant with a load of barrels at quitting time, the load was just left on the truck there and claimant would unload it the next morning.

Claimant’s injury occurred on the truck while he was engaged in picking up barrels at the premises of a Brueckman customer for conveyance to the Brueckman plant.

When claimant was off sick upon one occasion, he notified Dot and Dot sent another driver to replace him. When claimant was injured in the course of operating the truck for Brueckman, he reported his accident to Dot; he never personally notified Brueckman although Brueckman knew of the accident. Brueckman never paid claimant any salary or bonus — not even a Christmas gift.

Miss Dillon, until recently President of Brueckman, described the Brueckman business as buying drums and barrels, reconditioning and selling them; in some situations Brueckman simply reconditioned drums for others at a service charge. When Brueckman received calls to make pick-ups they endeavored to route the truck in one area and the same technique was followed in connection with making deliveries. After the Brueckman truck was sold to Dot Brueckman had no delivery trucks; nor did it have its own driver who drove a truck furnished by Dot. The driver assigned to the truck by Dot was kept on the job regularly unless he became ill or there was some emergency in his family. Miss Dillon testified that instructions were given to the driver by Hodge, Brueckman’s superintendent, and, in Hodge’s absence, by herself. Upon most occasions customers would inform Brueckman when they had drums on hand and “how much they are”. Some regular customers were called on once a week, others twice a month. On some occasions, when a call came from a new customer the driver was sent to the customer to view drums on hand with instructions to call Brueckman and report on same; thereupon Brueckman would quote a price for the drums. “If this were something routine, a customer which had been referred from somebody else we’d tell them to make the same price we made the other customers”. There was no difference in the operation of the truck after 1956 than before.

“Q. But after Feldman worked for you awhile, he then became acquainted with your customers and had the same contacts that your driver had before 1956, isn’t that true?
A. I would think so.
* * * * * *
Q. Now you had absolute control over the operation of that truck when it was reported to you in the morning at eight o’clock for that day, didn’t you? * * * the Brueckman Company had.
A. Yes.
Q. And whatever direction was given as to the operation of that truck on those days the Brueckman Cooperage Company would decide it and not Dot Service?
A. That’s right.
Q. In other words, Dot Service Company had no control over the truck or driver when he was in your service ?
A. I don’t know about the truck, but we gave the orders to the driver, if that’s what you mean.”

Prior to 1956, a truck driver was rarely used in the Brueckman plant. “If the driver turned in early and we had no further work for the truck, I would say we would put them in the plant but that wouldn’t happen too much.” However no driver furnished by Dot was ever used in the plant.

By deposition Superintendent Hodge, now Vice-President and Secretary of Brueckman, testified that either he or Miss Dillon gave the driver of the truck his orders each day. When claimant operated the truck his operations were the same as those which were performed by Brueck-man’s own truck drivers before the arrangement was made with Dot; directions given to the claimant were the same as those given to Brueckman’s own prior drivers. Hodge knew of no control or supervision exercised by Dot over the driver.

The pertinent statutory (RSMo 1959) definitions are: Employee — “every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election” (§ 287.020, V.A.M.S.) and Employer — “ * * * every other person * * * using the service of another for pay” (§ 287.030, V.A.M.S.).

Both parties have cited to us Ellegood v. Brashear Freight Lines, Inc., 236 Mo.App. 971, 162 S.W.2d 628. In that case the facts closely parallel the situation now before us. After a review of the statute and cases the Court said:

“From the foregoing cases we find the law to be that the relation of employer and employee exists as between a special employer to whom an employee is loaned and said employee whenever the following facts concur: (a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special master pursuant to an express or implied contract so to do; (c) power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.”

It may be noted that the court does not specify the parties thereto when under (b) it refers to an express or implied contract.

Appellant maintains that none of the tests stated in the Ellegood case is satisfied here. First, that there was no consent to work for the special employer. This position is not tenable. The evidence clearly shows that for a period of more than five years the claimant operated the truck in the service of Brueckman, that from the beginning he reported to Brueckman regularly in conformity with his initial instructions from Dot, that he recognized that “any time the truck driver is leased out to somebody, they take orders from that person” and in accordance with that recognition he followed the instructions of Brueckman for more than five years. “Consent * * * may be inferred from his [driver’s] acceptance of and obedience to orders given by [special employer], through its operating manager and other representatives.” Elle-good v. Brashear Freight Lines, Inc., supra. Furthermore, it appears from the testimony of Mr. Hart that claimant applied for the particular job of driving the truck for Brueckman and that he was hired “to drive on this particular contract” that Dot had with Brueckman. Claimant’s consent is conclusively established.

Appellant then contends that Brueckman did not have the power to control the details of the work to be performed by claimant. We think the evidence establishes the contrary. Claimant was furnished to Brueckman by his general employer in accordance with the contract between the two and he was instructed “to follow their orders on that. Whatever he told me to do.” Such instructions combined with the employee’s acquiescence therein indicate Brueckman’s right to control the details of claimant’s work whether that control was extensively exercised or not. “It is the ‘right of control’ or perhaps more clearly expressed the ‘right to direct’ and not the exercise of that right which is the factor for consideration on the control issue.” Patton v. Patton, Mo., 308 S.W.2d 739, 747. And see O’Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085, 1088: “The right of control, rather than the fact of control, governs.” While claimant’s activities on the job appear to have been generally routine in picking up and delivering barrels, he indicated that there were occasions when “something special come up and they [Brueckman] wanted you to do something particular”. Thus, according to Miss Dillon, there were sometimes departures from the mere routine of hauling; on occasion claimant would be sent out to inspect drums which someone had for sale and to report about the same by telephone and to "elect those for purchase. Miss Dillon, former president of appellant, testified that Brueckman had absolute control over the operation of the truck for the day after it was reported to the company in the morning. Mr. Hodge, appellant’s then superintendent, stated that whatever he wanted to do with the truck, he gave the orders to do it. Both Miss Dillon and Mr. Hodge testified that the driver operated in the same way after the agreement with Dot as Brueckman’s own driver had operated previously, that the truck was routed and the driver given his orders the same after 1956 as before. Brueckman’s right of control and its actual control of details is well shown by the testimony of Brueckman’s own witnesses as well as by the testimony of Dot’s representative that Dot had no control or supervision of the driver as to what he did or “about his working”.

There is no persuasiveness about appellant’s contention that claimant did not enter upon the work of the special employer. This part of the argument seems to rest upon the contention that the pick-up and delivery of barrels was not within the compass of the usual and customary business of appellant, which appellant would by its own definition confine to the repairing and reconditioning of barrels. The evidence shows that historically the pick-up and delivery were integral parts of the appellant’s overall operations and that they continued to be such after the contract made with Dot. Both the purchase and the sale of barrels involved haulage in that the reconditioning and repair necessitated the presence of the barrels at Brueckman’s plant and such reconditioning was a factual condition precedent to sales. Upon occasion Brueckman performed only a service to customers in repairing barrels which were not the subject of purchase and sale. Rendition of such service necessitated transport to appellant’s plant and return to the customers. Such transport was a usual and customary part of such service. We add that the general employer’s payment of the expenses of the operation, his keeping the machinery in repair and his payment of the employee’s wages do not militate against a finding that the employee entered upon the lessee’s business or prevent the lessee from becoming a special employer. Patton v. Patton, supra, 308 S.W.2d at page 747.

Further, appellant would have us find that claimant was not an employee of Brueckman because there was no express or implied contract between claimant and Brueckman for claimant to work for Brueckman. Therefore, says appellant, a part of the test laid down in Ellegood v. Brashear Freight Lines, Inc. was not satisfied, namely, that part relating to actual entry by the employee upon the work of the special employer pursuant to an express or implied contract so to do. As evidentiary support for that contention appellant cites the testimony of claimant that he never had any discussion with Brueckman about working for them directly — that there were no agreements with Brueckman that he was going to work for them.

It is obvious that there was no contract, express or implied, between claimant and Brueckman. Contract is promise or promises and the testimony affords no basis for finding that, as between claimant and Brueckman, there was any promise by or to either. However we find that the existence of a contract with the loaned employee is not a prerequisite to the investiture of the lessee with the new rank of special employer.

What the argument of appellant does in this connection is to seize upon the partial summary in Ellegood v. Brashear Freight Lines, supra, take it out of context and ignore the specific detailed holdings found in other parts of the opinion. Thus, the opinion, after referring to the statutory definition of employee, states that “There was no contract of service, express or implied, between the plaintiff [loaned driver] and Brashear Truck Lines, Inc., [lessee], the only contract of service shown by the evidence being between plaintiff and Curtis, his general employer. But, the statutory definition goes further. It says that one may be an employee if he is in the service of another ‘under any appointment or election’ ”. The court then quotes from Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, 772-773 “The term ‘employee’ is thus given a broad meaning and includes every person ‘in the service of any employer’ and is not confined to those ‘under any contract of hire,’ express or implied, but also includes those performing service by ‘appointment or election’ ”. The court in the Ellegood case held that the loaned driver was an employee of the lessee (special employer) under the compensation act. Thus, it is clear that appellant has misconstrued the actual ruling in that case. In the case at bar it is equally clear that Dot, in accordance with its contract with Brueckman, appointed claimant to perform services for Brueckman and that claimant actually entered upon the work of Brueckman and for a period of more than five years performed such services for Brueckman with full knowledge and acquiescence. He was injured while in the service of Brueckman.

Appellant has urged that this court should follow Schepp v. Mid City Trucking Co., Mo.App., 291 S.W.2d 633. We believe that that case has been sufficiently distinguished from the situation here presented by the Supreme Court in Patton v. Patton, supra, and Wright v. Habco, Inc., Mo., 419 S.W.2d 34. This court is not unaware that in the Ellegood case and in Habco case the action was one for damages. However in each the vital issue was whether the plaintiff was an employee of the defendant by definition of the Workmen’s Compensation Act and, if so, limited under the act to the remedies given by that act.

Finally appellant contends that Dot was an independent contractor at the time Mr. Hart drove the truck as a temporary “filler-in” and that the nature of his contract with Brueckman did not change when he assigned his employee Feldmann to the job. Without attempting to determine what Mr. Hart’s rights would have been if he had been injured while driving the truck on Brueckman business, we reach the definite conclusion that Dot was not an independent contractor. Brueckman sub-contracted no part of its business to Dot and Dot did not contract to accomplish a particular result. By the contract Brueckman merely procured from Dot additional facilities with which to perform Brueckman’s business. Ellegood v. Brashear Freight Lines, Inc., supra, 162 S.W.2d at page 631. And see Wright v. Habco, Inc., supra, 419 S.W.2d at page 38.

Finding that Brueckman was a special employer of claimant and that claimant’s injury arose out of and in the course of his employment by Brueckman, the judgment is affirmed.

PER CURIAM:

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

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

       Appellant takes one additional step and maintains that the absence of an agreement between claimant and the special employer shows that there was no consent to the substitution of the latter for the general employer. Appellant’s language suggests that something in the nature of a novation would be necessary in order to find that claimant was an employee of the special employer. In this connection appellant’s contention is wholly unacceptable. When a special employer is brought into the picture the process involves not a substitution of one employer for another but the addition of an employer. The pre-existing relationship of general employer and employee is not extinguished by reason of the fact that a third party may become a special employer under the terms of the Compensation Act. The original employer remains responsible for performance of the contract which he made with the employee; one need only cite, for example, the obligation to pay contracted wages and the honoring of a provision for duration of employment if there be such a term.


author: DOERNER, Commissioner.

text:
    Arthur KLOPSTEIN, Employee-Appellant, v. SCHROLL HOUSE MOVING CO., Employer, and Bituminous Casualty Corp., Insurer, Respondents.
    No. 32891.
    St. Louis Court of Appeals. Missouri.
    Feb. 20, 1968.

      Harry J. Nichols, St. Louis, for employee-appellant.
    Graff & Lahey, Malcolm I. Frank, St. Louis, for respondents.
   DOERNER, Commissioner.

In this proceeding under the Workmen’s Compensation Law claimant Arthur Klop-stein filed a claim on April 15, 1964, wherein he alleged that, “On or about Sept. 4, 1963” he “ * * * fell off a rack of timbers onto the floor causing, aggravating and/or exascerbating” his “Lumbar sacral spine and associated nerves.” The employer and insurer answered, denying that the claimant had sustained an accident and also pleaded that the claimant had failed to give a notice to his employer of any accident or injury within the time prescribed by law. After a hearing the referee entered the following award:

“I find from all of the evidence that Arthur Klopstein, employee herein, sustained an accident on September 4, 1963, arising out of and in the course of his employment with the Schroll House Moving Company.
“I further find that the employee failed to give the employer notice of his injury as required by Section 287.420 Revised Statutes of Missouri, 1959.
“Compensation, therefore, is hereby denied.”

Neither side found that award entirely to its liking and both sought a review by the Industrial Commission, the claimant from that portion concerning the failure to give notice and the denial of compensation and the employer and insurer from the finding that the employee had sustained an accident arising out of and in the course of his employment. In its final award the Industrial Commission adopted the referee’s findings of fact, his rulings and conclusions of law, and his decision, and denied compensation. On appeal by the claimant the Circuit Court of St. Louis County affirmed the final award, and he now seeks our review.

The evidence shows that for about one and a half years prior to September, 1963, the claimant, nineteen years of age at that time, had worked for the employer, who was engaged in the business of moving houses. Qaimant testified that while he was classified as a carpenter he actually performed mostly manual labor. He related that, “About the first part of the month” of September, 1963 (he could not give a specific date), while standing on a pile of timbers in the employer’s storage yard, looking for a particular one to load on a truck, his right foot went through a space between two timbers, causing him to fall to the ground. He immediately experienced what he described as “moderate” pain in his right arm, hip and back. Claimant stated that he had never had pain in his back before, and knew he was injured from the moment he got up. He admitted that he never told his foreman about the accident the day he fell or at any later time. Claimant said that he continued to work on the day he fell, and thereafter, although the pain became increasingly worse, and that he consulted his family physician, Dr. B. Todd Forsyth, on October 19, 1963. According to Dr. Forsyth, claimant was then complaining of a stiff neck, and of pain in his back which had developed about the first of September, but gave no history of an accident or fall.

Claimant continued under the care of Dr. Forsyth and was hospitalized in March, 1964, for treatment for what the doctor diagnosed as a herniated intervertebral disc between the fifth lumbar and first sacral vertebrae. He continued to work until Friday, November 1, 1963, when he quit because Dr. Forsyth told him to stop as the heavy lifting was aggravating his condition. On Sunday, November 3, 1963 claimant telephoned Jess W. Schroll, his employer, and told him he had been to the doctor, had a ruptured disc, and would have to get lighter employment. Schroll asked claimant whether he had been hurt on the job, and claimant answered no, that he couldn’t recall having been hurt; and that he didn’t know what caused his injury. Schroll suggested claimant come by the next evening, and claimant did so. On that visit claimant told Schroll he had awakened from a dream one night with his back hurting him, that he had gone to the doctor a couple of times, and that the doctor finally said he thought it was a ruptured disc and claimant should get some other kind of job. Schroll asked claimant how he was going to take care of his doctor bills, and when claimant said he would make out, Schroll told claimant there were two ways in which he could help him; that if he was hurt on the job he should apply for workmen’s compensation, and if he wasn’t hurt on the job he should apply for welfare from the Carpenter’s Welfare Fund. After Schroll’s conversation with claimant on November 4, 1963, Schroll called the insurer, reported that claimant had an injury, and was instructed to make out a report. Schroll made one out on the Workmen’s Compensation Division Form 1, “Report of Injury.” To the printed question, “Is injury under the Law?” he answered, “Yes,” but in response to the question of how the injury occurred he wrote: “Arthur does not claim injury specifically. He first notified us on Nov. 4, 1963 that his back was bothering him and he had consulted a doctor who suggested that he quit work for a while.” While this report was dated November 19, 1963 and sent to the insurer at that time, it was not filed with the Division until March 19, 1964.

About a week or two after November 4, 1963 claimant called Schroll on the telephone and during the conversation Schroll suggested that claimant go to Dr. M. A. Diehr for an examination to be sure he had a ruptured disc. Schroll told claimant that he would pay for the examination. Schroll made the suggestion and personally paid for the examination because he considered claimant as a friend and a young man; and because he wanted to find out what was wrong with him as he had a boy about claimant’s age. During the conversation claimant made no mention of having been injured on the job. Claimant did go to Dr. Diehr for an examination on December 6, 1963. The doctor testified that claimant gave a history of his back beginning to ache about the first of September, but said claimant did not remember injuring his back. After examining claimant and the x-rays which had been taken for Dr. Forsyth, and which claimant brought with him, Dr. Diehr told claimant he could not make a definite diagnosis without a further examination, including a myelogram.

On November 29, 1963, claimant filed a claim for benefits with the Carpenter’s Health and Welfare Fund, which is supported by contributions made by employers at the rate of 1(⅜ an hour worked by each carpenter they employ. In the written application claimant gave the following answers to the questions on the form: Q. “When did accident happen or sickness begin. A. Unable to name exact time 1963. Q. Describe injuries received or nature of sickness. A. Ruptured disc. Q. If an accident, where and how did it happen? A. time unknown. Q. Was disability due to occupational accident or occupational sickness? A. Unknown.” The purpose of the Fund is to provide benefits to members of the carpenter’s union for illness or injuries not connected with accidents while at work. Claimant was paid $25 per week by the Fund for the period from November 4, 1963 to March 29, 1964.

The files of the St. Louis office of the Division of Workmen’s Compensation showed that claimant consulted Referee Thomas L. Sullivan for free legal aid on December 3, 1963. The notation made on the Division’s form prepared by Sullivan (who had died prior to the hearing) reads:

“Loading truck, foot slipped between too (sic) timbers and fell, followed by back pain. No disability at that time. Consulted own doctor. Notified boss of condition on 11/1/63. Employee advised of rights. Set for conference as soon as possible.”

On December 17, 1963 claimant was interviewed by someone representing Bituminous Casualty Corporation, Schroll’s compensation insurer, and gave him a written statement, which was introduced by claimant. In it claimant stated that he had fallen off of the timbers and to the ground about the first week in September, 1963, while looking for a particular timber, causing pain in his right arm and hip, and in the lower part of his back.

On direct examination by his counsel claimant was asked: “You yourself have never told Mr. Schroll about having fallen out there at work, have you ?” to which he answered, “No, sir.” Schroll, who was called as a witness by claimant, testified on cross-examination:

“Q (BY MR. LAHEY) Up to the present time has Arthur Klopstein ever said anything to you about having fallen while at work and being injured?
■ “A No.
“Q What was the first knowledge you had that this man was claiming that he was injured at work?
“A First I got a letter from the Workmen’s Compensation Commission that he applied for Workmen’s Compensation.”

Schroll was not asked and the evidence does not show when he received the letter from the Commission, and we cannot be certain whether it was received after claimant consulted Referee Sullivan for free legal aid on December 3, 1963, or whether it was after claimant filed his claim on April 15, 1964.

In view of the issues raised by claimant in this appeal it is unnecessary to digest at length the testimony of Dr. Forsyth or Dr. Samson Wennerman, who testified on behalf of claimant, or of Dr. Marshall B. Conrad, who was called by the employer and insurer, except to say that neither Dr. Wennerman nor Dr. Conrad found that claimant suffered a herniated intervertebral disc, and both found that claimant had a congenital deformity of the upper part of the sacrum. In general they seem to have agreed that claimant had a low hack sprain and a congenital defect of the back. Their opinions as to his disability, however, varied from 5% as expressed by Dr. Conrad to 15% as stated by Dr. Wennerman.

During his direct examination claimant testified that Buford Smith and Charles Summers were in his vicinity when he fell. On cross-examination he stated that he believed Smith was on the timber rack with him at the time, but that he was not sure whether Summers, a truck driver, had left the truck. He admitted that he did not mention his fall to either one, but insisted that they saw him fall. Both Smith and Summers were called as witnesses by the employer and insurer. The substance of Smith’s testimony was that he couldn’t remember whether claimant fell off of a stack of timbers in September, 1963; that he may have; that everybody on the job has fallen at one time or another; and that he couldn’t remember whether claimant ever told him he had injured his back and arm while working. Summers, when asked whether he had seen claimant fall from a stack of timbers at the employer’s yard, flatly answered, “No”; and on cross-examination stated he had never seen claimant fall.

As stated, the Industrial Commission adopted the referee’s findings that claimant had sustained a compensable accident but denied compensation because claimant failed to give the employer the notice of the time, place and nature of his injury as required by the Workmen’s Compensation Law. Section 287.420, Laws 1965, p. 410, in effect at the time of the award, which differs only immaterially from the section it superseded, reads:

“No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or the commission finds that there was good cause for failure to give the notice, or that the employer was not prejudiced by failure to receive the notice. No defect or inaccuracy in the notice shall invalidate it unless the commission finds that the employer was in fact misled and prejudiced thereby.”

The obvious purpose of that section is to give the employer a timely opportunity to investigate the facts as to whether an accident did occur, and, if it did, to promptly furnish medical attention to the employee to minimize the injury. Brown v. Douglas Candy Co., Mo.App., 277 S.W.2d 657. As the language of § 287.420 indicates, the giving of a written notice is not an absolute, unconditional prerequisite to the claimant’s recovery of compensation, for it empowers the Commission to allow compensation if it finds there was “good cause” for failure to give such notice, or that the employer was not “prejudiced” by failure to receive it. Beatty v. Chandeysson Electric Co., 238 Mo.App. 868, 190 S.W.2d 648. Thus the failure to give the required notice has been held excusable for good cause where at the time the accident occurred the injury appeared trivial to the employee and its seriousness did not become apparent until more than 30 days had elapsed. State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1008; Reeves v. Fraser-Brace Engineering Co., 237 Mo.App. 473, 172 S.W. 2d 274. Furthermore, if the employer admits that he had. actual knowledge of the accident at the time it occurred it has been held that the employer could not have been prejudiced by a failure to receive the statutory written notice, and compensation has been allowed. McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911. Where, however, the employer does not admit that he had actual knowledge the issue becomes one of fact; if the employee produces substantial evidence that the employer had such knowledge he thereby makes a prima facie showing of want of prejudice, and the burden of bringing forth evidence to prove he was prejudiced shifts to the employer. Brown v. Douglas Candy Co., supra. But Section 287.420 places the burden of proof upon the claimant to produce competent and substantial evidence that the written notice was given or to establish a statutory excuse for failure to do so; and where neither written notice or actual knowledge is shown by a claimant the burden rests on him to supply evidence and obtain the Commission’s finding that no prejudice to the employer resulted. State ex rel. Buttiger v. Haid, supra; Brown v. Douglas Candy Co., supra.

We refer to these interpretations and applications of § 287.420 because of their relevance to the points raised by claimant on appeal. Tacitly conceding that no written notice was given and that the employer had no actual knowledge of any accident, claimant contends that as a matter of law no prejudice to the employer was shown by claimant’s failure to give the written notice within 30 days. Claimant appears to believe that the burden was on the employer to prove that he was prejudiced. On the contrary, under the circumstances existing in this case the burden was on claimant to show that the employer had not been prejudiced. Brown v. Douglas Candy Co., supra. Claimant not only failed to sustain that burden but the evidence as a whole, including his own, shows that the employer was in fact prejudiced in that he was deprived of the opportunity to make a timely investigation of the facts regarding claimant’s accident, and a like opportunity to minimize whatever injuries claimant may have suffered at the time of his fall. It is a matter of common knowledge that the memory of most individuals for facts and details fades with the passage of time. There can be no better example of that than claimant’s own inability to state the date upon which he fell, the day of the week, or even the approximate time of the day; and to come no closer than that it occurred in the first part of the month of September, 1963, sometime in the morning. Prejudice to the employer’s opportunity to make a timely investigation was further shown by the fact that of the two witnesses whom claimant stated saw him fall, one testified he could not remember seeing claimant fall and the other flatly denied that he had seen claimant fall.

Regarding the deprivation of the employer’s opportunity to promptly furnish medical attention to minimize his injury, claimant seizes upon an excerpt from Dr. Conrad’s testimony that he had only been requested to make an examination of claimant on March 21, 1964, but if he had been going to treat him he would have recommended claimant be fitted with a low back support, use of a hard bed, application of heat, and restriction of his activities by the avoidance of heavy lifting. Claimant asserts that this was the same treatment prescribed by Dr. Forsyth (not, however, until November 1 or 2, 1963) and hence that the employer was not prejudiced. But the question is not what Dr. Conrad would have recommended on March 21, 1964, six months after the accident, or what Dr. Forsyth prescribed on November 1, or even on October 19, 1963 when claimant first consulted him. The question is what the result would have been had the employer been afforded the opportunity to promptly furnish medical attention after claimant’s fall. Having failed to give written notice of the accident, and having admitted that the employer did not have actual knowledge, it was incumbent upon claimant to prove that the employer was not prejudiced in that his injury could not have been minimized if his employer had been afforded an opportunity to provide him with such proper medical attention within the statutory time after the accident. His own evidence showed that the opposite was true. According to his own testimony he had only moderate pain when he arose from his fall, although he knew then that he was hurt. The pain in his back not only did not subside, but became increasingly worse as he continued his employment which required heavy lifting and other strenuous activity. And because of this worsening condition, Dr. Forsyth, who saw him several times between October 19 and November 1, 1963, eventually recommended that he obtain other and less rigorous work. The only conclusion which can be drawn is that claimant’s failure to give either written or oral notice to his employer and his continued activity caused his injury to become worse.

Claimant next asserts that the Circuit Court should have remanded the final award to the Industrial Commission with directions to determine the issues of good cause and lack of prejudice. That argument assumes that in every case the Commission must make a specific finding on those issues, and that it did not do so in the instant case. The wording of Section 287.420 does not support claimant’s first assumption. Note that it reads: “No proceedings for compensation * * * shall be maintained unless written notice * * * have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or the commission finds that there was good cause for failure to give the notice, or that the employer was not prejudiced by failure to receive the notice. * * * ” As we construe that part of the statute it would seem to require a finding that good cause existed or that the employer was not prejudiced only when the Commission allows compensation even though the required written notice was not given. And even in such cases, where the Commission makes a general award in favor of the claimant and allows compensation, it has long been held that such a general finding necessarily implies the finding of every fact necessary to support it, including that of good cause or lack of prejudice. State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S. W.2d 1008; Newman v. Rice-Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264, 94 A.L.R. 751; Beatty v. Chandeysson Electric Co., 238 Mo.App. 868, 190 S.W.2d 648. As to claimant’s second assumption, if the statute does require a finding as to good cause or prejudice, then the cases cited would support the proposition that the Commission’s general award denying compensation necessarily implies that it found there was no good cause for claimant’s failure to give the required notice, or that the employer was prejudiced by such failure, or both. The entire record plainly shows that the issues of good cause and prejudice were raised and disputed issues throughout the hearing before the referee and on review by the Commission. Furthermore, claimant is not now in a position to complain that specific findings were not made as to such issues because he never requested the referee or the Commission to include such findings. Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165; Williams v. International Shoe Co., Mo. App., 213 S.W.2d 657; Jones v. Remington Arms Co., Mo.App., 209 S.W.2d 156.

In his concluding point claimant maintains that since a minor need not file a claim within a year after his accident, a minor should not be required to file a written notice or to give actual notice of his accident within thirty days. This argument overlooks or disregards the differences in the applicable statutes. It is true that the statute of limitation does not begin to run until a minor’s disability is removed by the appointment of a guardian. But this is so only because the statute, § 287.430, as amended, Laws 1965, p. 410, after requiring the filing of a claim within one year under varying circumstances, provides ¡ “ * * * jn an 0ther respects the limitations shall be governed by the law of civil actions other than for the recovery of real property, but the appointment of a guardian shall be deemed the termination of legal disability * * Allen v. St. Louis-San Francisco Ry. Co., 338 Mo. 395, 90 S.W.2d 1050, 105 A.L.R. 1222; Hugelman v. Beltone Kansas City Hearing Service Co., Mo.App., 389 S.W.2d 220. There is no corresponding provision in § 287.420 exempting a minor from the requirement to give written notice, and in the absence of such an exemption § 287.020(1) would govern the situation. It is there provided, in part: “ * * * The word ‘employee’ shall also include all minors who work for an employer, whether or not such minors are employed in violation of law, and all such minors are hereby made of full age for all purposes under, in connection with, or arising out of this chapter.” Accordingly, it has been repeatedly held that for all purposes arising under the Workmen’s Compensation Law, except that of filing a claim, a minor stands emancipated. Sommers v. Hartford Accident & Indemnity Co., Mo.App., 277 S.W.2d 645; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Matlock v. A. Leschen & Sons Rope Co., Mo.App., 43 S.W.2d 871.

The judgment is affirmed.

PER CURIAM.

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

RUDDY, Acting P. J., WOLFE, J., and GEORGE W. CLOYD, Special Judge, concur.