author: CRIST, Judge. REINHARD, Presiding Judge, GUNN, Judge,

text:
    STATE of Missouri at the Relation of Virginia KING, Relator, v. The Honorable William M. TURPIN, Judge of Division No. 1 of the Circuit Court of St. Charles County, Respondent.
    No. 40920.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 9, 1979.
    Daniel J. McMichael, Clayton, for relator.
    Walter J. Gelber, Clayton, for respondent.
   CRIST, Judge.

Original proceeding in prohibition. Preliminary writ of prohibition made absolute.

Relator Virginia King, defendant in the case of Dettie White, et al. v. Virginia King, complains that the respondent erred in ruling that she could not depose a witness after the case was set for trial because of Rule 6 of the Eleventh Judicial Circuit Court Rules. We agree.

On August 7, 1978, relator obtained a trial setting for October 16, 17, and 18, 1978. On August 21, 1978, she served notice to take the deposition of Dr. Burd in Nashville, Tennessee on September 7, 1978. Thereafter, on September 11, 1978, she served a new notice to take the deposition on September 18, 1978. Plaintiffs filed their motion for protective order. Respondent sustained the motion “for failure [of] defendant to comply with Rule 6 of this Court.”

Essentially, in order to get a case on the trial docket of the Circuit Court of St. Charles County, Missouri, a party to the action must, pursuant to local Rule 6, file a certificate of readiness with the Clerk of the Circuit Court of St. Charles County wherein it is stated that all discovery has been completed on behalf of the applicant for trial setting, and a copy thereof must be mailed to all other attorneys of record pursuant to Rule 6(3)(a). Under the terms of said Rule 6 any litigant not a party to the application for trial setting may apply for additional time to complete discovery.

Rule 56.01(a) provides that discovery shall not be limited “[ujnless the court orders otherwise under subdivision (c) of this Rule, . . . ” Subdivision (c) deals with protective orders. Local court rules cannot arbitrarily infringe upon the right of a party to take a deposition. Respondent’s interpretation of Rule 6 does just that — no discovery after you have filed a certificate of readiness.

The right to take a deposition is absolute excepting as provided in Rule 56.-01. Norkunas v. Norkunas, 480 S.W.2d 92, 94 (Mo.App.1972); State ex rel. Chandler v. Scott, 427 S.W.2d 759, 762 (Mo.App.1968); and State ex rel. Houser v. Goodman, 406 S.W.2d 121, 125 (Mo.App.1966).

Rule 50.01 permits circuit courts to make rules governing judicial business, but it does not permit those courts to make rules contrary to the rules of the Supreme Court. Cf. Wade v. Wade, 395 S.W.2d 515 (Mo.App.1965) (construing a St. Louis County Circuit Court Rule to be in conflict with Rule 43.01(a)). Respondent’s interpretation of Rule 6 unduly restricted the right to take depositions, contrary to Rule 56.01.

Our preliminary writ of prohibition is made absolute.

REINHARD, P. J., dissents in separate opinion.

GUNN, J., concurs in result only and in separate concurring opinion.

REINHARD, Presiding Judge,

dissenting.

Although I find my views close to those expressed by Judge Gunn in his concurring opinion, I dissent from the decision of the majority.

The petition in this damage suit was filed on July 7, 1977. Plaintiff filed her first certificate of readiness on January 21, 1978. On January 30, defendant objected to plaintiff’s certificate of readiness, claiming “that plaintiff’s deposition had not been taken and because she had not had her statutory examination.” In compliance with the 11th Circuit Court’s Local Rule 6(3X6), the clerk automatically took the case off the trial calendar. On April 13, 1978, plaintiff filed a second certificate of readiness as allowed by the rules; defendant again objected within ten days. On April 28, 1978, the court overruled defendant’s objections to plaintiff’s certificate of readiness. The case was set for trial on June 26, 1978, but was not reached on that date. Upon the request allegedly made by the defendant on August 7, 1978, the case was then set for trial October 16, 17 and 18, 1978.

On August 21, 1978, defendant filed notice of the deposition of Dr. Burd in Nashville, Tennessee. Plaintiff filed a motion for a protective order. Using its local Rule 6 as the basis, the court sustained the request for a protective order.

At issue before us are the two grounds which defendant presented to us in the petition for Writ of Prohibition and in defendant’s brief. Defendant first contends that Rule 6 does not prohibit discovery after the case is set for trial and secondly argues that the rule is null and void because it is contrary to the rules of the Missouri Supreme Court.

As to the former contention, defendant does not consider whether the rule prohibits further discovery by the party asking for a trial setting, but claims that the party not requesting a trial setting is not prohibited from taking further discovery. In any case, I believe that a reading of the entire rule indicates that a party not requesting a trial setting is prohibited from taking further discovery if the case is set for trial. Rule 6(3)(6) provides that applications for additional time to complete discovery shall be filed within ten days of receipt of a request to place the case on the trial docket. If such an application is timely made, “the clerk shall not place the case on the trial docket.” The rule further provides that the parties seeking a trial setting may file a second certificate of readiness thirty days after filing the original certificate. At this time, the clerk shall place the case on the trial docket. It can then be removed from the trial docket only for good cause shown, this to be done by motion and notice within ten days after the filing of the second certificate of readiness. If not removed from the docket, the case shall then be set and all counsel shall be deemed ready for trial. The trial court has construed and applied the rules to prohibit further discovery after the case is set for trial. With this language that all parties are deemed ready, considered in the context of the other provisions of the rule, I believe that a fair reading of the rule supports this construction and application.

However, the crucial issue in this case is that addressed by the majority opinion: whether the trial court can by rule limit the time of taking discovery or whether the only limitation on discovery is that provided in Supreme Court Rules.

Rules prohibiting or limiting discovery after a case is set for trial are in existence in many of the circuits of the state, both urban and rural. The effect of the majority opinion would be to undermine such rules. The majority says this rule is void as applied because it is contrary to Missouri Supreme Court Rules. The majority opinion relies, as does defendant, upon Rule 50.01, which provides for local rules, but states that they cannot be “inconsistent with the rules of . [the Supreme] Court, the Constitution or statutory law in force.” Defendant further relies on Rule 56.01, the rule pertaining to discovery, which states, “Unless the court orders otherwise under subdivision (c) of this Rule, the frequency of use of these methods is not limited.” Defendant finally seizes upon a few cases which state that the right to take a deposition is absolute. Reviewing the Supreme Court rules, I do not believe that they prohibit the application of rules such as Rule 6 as a means of controlling the flow of cases in the circuit court. Nor am I persuaded by the cases offered by defendant, because none of those cases confronted the right of the circuit court to reasonably restrict the time in which depositions can be taken.

The value and propriety of local court rules is well established. See specifically Section 478.245, V.A.M.S. (1979) which provides for the adoption of the rules by the circuit courts. Moreover, a perusal of Supreme Court Rules other than those cited by defendant reveals recognition of local court rules, as well as of potential time limitations on discovery. Rule 63.02 makes the following provisions for trial settings in multiple-judge circuits: “In multiple-judge circuits, civil actions shall be set for trial in accordance with the rules of court.” (Emphasis added). Rule 63.01, relating to single-judge circuits, provides, inter alia, that a case may be set for trial by a party “[U]pon request of any party, when the issues have been joined and a reasonable time has elapsed for discovery, if five days’ written notice (stating the date upon which such order setting the civil action for trial shall be requested) has been given by the requesting party to all other parties.” (Emphasis added). Rule 63.01 recognizes that, after the issues are joined, a reasonable time should pass during which parties can complete their discovery.

Examination of Rule 6 shows that it is reasonable and that neither parties “absolute” right to discovery is impeded. Neither party is required to ask for a trial setting. Prior to a request for a trial setting, either party may pursue its “absolute” right to discovery. The party wanting to try his case informs the court by the certificate of readiness that his discovery is complete. His adversary is not prohibited from taking further discovery. However, he is on notice that the case is going to be tried and that further discovery may be pursued by objecting to the trial setting within ten days of receipt of the request for a setting. If there is such an objection, the requesting party cannot file another certificate of readiness until 30 days have passed since the date on which he filed his previous request. This gives the non-requesting party a minimum of 30 days in which to pursue further discovery after an initial request for a trial setting has been made. I cannot read into the Supreme Court Rules any requirement that local rules of this nature are prohibited.

The Supreme Court has placed upon the judges the responsibility for the orderly disposition of cases on file within the circuits. Obviously, those circuits which have adopted rules similar to Rule 6 believe that such rules will assist them in performing their function. I believe that such local rules can be an appropriate device for effecting orderly operation of the court. However, they must be reasonable and fairly enforced. Moreover, they can only operate in circuits where trials are set within 90 days of request or less; liberal exceptions must be made in cases where facts are changing prior to trial.

Perhaps the better written rule would specifically provide that no additional discovery could be taken without an order of the court after the case is once set for trial. However, it is not the function of this court to write rules for the circuit courts. Should circumstances arise requiring emergency relief, either party should be able to freely petition the court for such relief. Allowances also must be made for the preservation of testimony of one’s own witness for use at trial. Rule 6 does not preclude such action. Furthermore, even though both parties may have filed certificates of readiness they have no control over the actual date the case is set for trial. In many cases, the parties are uncertain as to the availability of their witnesses, especially medical witnesses. Unforeseen unavailability might necessitate the taking of additional depositions. The failure to grant relief under these or other emergency circumstances would be an abuse of discretion entitling a party to interference by an appellate court. This is not the case here.

As previously noted defendant does not contend that the court has abused its discretion, and as the case reaches us here I find none. More specifically, there is no allegation before this court, nor was there any before the circuit court, that Dr. Burd’s testimony or availability was altered in any manner from the time of the original trial setting in June to the second trial setting in October, 1978. It was not alleged that Dr. Burd was available for the first trial date, but not for the second. No allegation is made that, in the period of months after the last amendment of the pleadings, subsequent discovery revealed anything new regarding Dr. Burd’s testimony. That the circuit court, in setting the trial for June, made an exception for some additional discovery undermines any contention that the court acted arbitrarily. After the case was originally set in June, the parties conducted extensive discovery; clearly in this case the St. Charles Circuit Court has not been inflexible as to Rule 6.

Although the attorneys involved in this litigation maintained their offices outside the 11th circuit, there is no complaint here that they were surprised by this rule. Twice the rule was invoked by defendant in an attempt to prevent the case from being set for trial.

I believe that the preliminary writ was improvidently issued and that it should be dissolved.

GUNN, Judge,

concurring.

I concur with the result reached by the majority. I believe that the circuit court has the right to adopt and invoke court rules, such as Rule 6, governing judicial business. But care must be taken in the imposition of such rules so as not to clash with the specific intendment of the discovery procedures of Rule 56.01 — the allowance of broad latitude in discovery process.

I can see that a rigid and invariable application of Rule 6 could violate the purpose of Rule 56.01 and at the same time provide no meaningful benefit to the trial court. For example, under Rule 6 no further discovery would be allowed in a case which has finally been set for trial although such discovery causes the trial no inconvenience as in the case where a case is scheduled for trial some substantial time in the future. Application of Rule 6 in such a situation would serve no purpose except to frustrate Rule 56.01.

However, I fully recognize the need for the trial court to be able to conduct its business as efficiently as possible taking into consideration the best interests of all parties involved in the litigation. Without some strictures, deliberate last minute requests for discovery could interfere with docket planning, causing unfair and unreasonable delay, confusion and interference with orderly process of court procedures, scheduling of cases and trial preparation.

Under the circumstances of this case I cannot see where the proposed discovery sought by the relator was so unreasonable as to disturb orderly court business. I therefore concur in the result reached by the majority.

      . RULES Assignment of Causes and Settings for Trial
      (1) All causes, civil, criminal, juvenile and other proceedings instituted in the respective counties of this court, and appeals thereto shall be forthwith and originally assigned to the assignment division of this court.
      (2) Causes to be tried, until all preliminary motions shall be disposed of, the pleadings therein made up, and trial dates set shall be retained in a general docket, except that any said cause may be assigned to a trial division for purposes of a pretrial conference and shall thereafter be tried in that Division.
      (3) Setting Cases for Trial: After a case is at issue, it will be placed on Trial Docket at the request of either party when that party has completed his discovery. .
      (a) The request shall be filed with the clerk, and a copy mailed to all parties or their attorneys of record. Ten days after receipt thereof, the clerk shall place the case on the Court’s Trial Docket, unless otherwise directed by the Court.
      (b) Applications for additional time to complete discovery shall be filed within ten days of receipt of request to place the case on the trial docket and if such application is timely made the clerk shall not place the case on the trial docket. In said case the party seeking to place the case on the trial docket may 30 days from the date of first filing his previous request file a subsequent request and the case shall then be placed on the trial docket by the Clerk and may be removed only on Court order for good cause shown upon motion and notice to opposing counsel. Such motion shall be filed within 10 days after receipt of the certificate of readiness or the cause will, upon request, be set for trial and all counsel shall be deemed ready for trial.

      . Plaintiff contends that it was the defendant who asked for the trial setting on August 7, 1978.

      . This statutory provision is an outgrowth of activity initiated in the 1960’s when the Missouri Bar started on the process of court reform. A basis for the reform was the public’s complaint concerning the failure of the system to expeditiously move cases. In 1972 and 1976 the voters of this state amended the constitution in furtherance of the original objectives of the Missouri Bar.

      . On September 19, 1978, defendants filed their suggestions in support of the original petition in prohibition. We quote the first paragraph:
      “Relators’ attorneys would like to preface their suggestions in support of their petition by expressing their appreciation for the disciplined manner in which the 11th Judicial Circuit’s docket is run. The court’s strict attitude about settings and continuances is good for the public at large and the Bar in particular. No doubt the ruling complained of herein was made with a view towards maintaining this discipline and moving the docket in general, and this case in particular, to a speedy conclusion.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    Frank WUEST, Deceased by Evelyn Wuest, widow, Appellant, v. STIX, BAER AND FULLER, Respondent.
    No. 39863.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 9, 1979.
    Harry J. Nichols, St. Louis, for appellant.
    Evans & Dixon, Edward Warner, St. Louis, for respondent.
   CRIST, Judge.

Workmen’s Compensation case. Appeal from the dismissal of claim for failure to prosecute. We affirm.

Frank Wuest was employed by Stix, Baer and Fuller from 1946 to January, 1970. He died on August 4, 1972 at St. Louis County Hospital of cirrhosis of the liver.

The decedent’s widow, Evelyn Wuest, filed a claim for Workmen’s Compensation on July 27, 1974, stating that the death of Mr. Wuest was caused by an exposure of chemicals during his employment with Stix, Baer and Fuller.

Respondent, Stix, Baer and Fuller, filed a timely answer.

The claim was set for hearing on November 15, 1974, at which time claimant requested a continuance, a request which she invoked several times thereafter. On August 2, 1976, when claimant appeared by counsel still not prepared for trial, the referee of the Division of Workmen’s Compensation dismissed the case. The order of dismissal entered on August 31,1976 by the referee cited for the record that the case had heretofore been set for prehearing on March 19, 1976 and for hearing on November 15,1974, April 8,1975, October 30,1975, and July 9, 1976. It further stated that inasmuch as notice of hearing for the 2nd day of August, 1976 had been directed to claimant at her last known address by certified mail and that on August 2, 1976 claimant failed to appear ready for the hearing, a motion to dismiss was heard and sustained and the claim ordered dismissed.

Claimant filed an application for review with the Labor and Industrial Commission on September 17, 1976. The Commission denied review on December 9,1976. Thereafter claimant appealed to the Circuit Court of St. Louis County. On October 10, 1977, the Circuit Court of St. Louis County denied the appeal and affirmed the decision of the Labor and Industrial Commission.

Claimant contends that the referee had no power to dismiss her claim for want of prosecution because there was no lawful order of the referee. However, claimant failed to raise this issue previously with her application for review to the Industrial Commission or in the appeal to the Circuit Court of St. Louis County. Therefore this issue is not preserved for review by this court. Smith v. Inter-County Telephone Co., 559 S.W.2d 518, 524 (Mo. banc 1977). In any event, there was a lawful order of the Industrial Commission in that notice of a hearing for August 2, 1976 was directed to claimant, the attorneys for all parties appeared and a motion to dismiss was heard and sustained. Cade v. Bendix Corporation, 564 S.W.2d 608, 609 (Mo.App.1978).

Claimant’s second point, that the referee acted arbitrarily and capriciously in dismissing her claim, is an issue also raised for the first time on this appeal. It is, likewise, not preserved for review. In any event, the facts do not bear out any contentions by claimant that the referee abused his discretion and acted in an arbitrary and capricious manner. See Cade v. Bendix Corporation, 564 S.W.2d 608, 610 (Mo.App.1978).

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concurs.


author: GUNN, Judge.

text:
    STATE of Missouri ex rel. TURCO DEVELOPMENT COMPANY and Security Mortgage Co., Inc., Relators, v. Hon. Herbert LASKY, Judge of the Circuit Court of the County of St. Louis, Missouri, Division 4, and Hon. Robert G. J. Hoester, Presiding Judge of the Circuit Court of the County of St. Louis, Missouri, Division 8, Respondents.
    No. 40732.
    Missouri Court of Appeals, Eastern District, Division One.
    May 9, 1979.

      Steinberg & Crotzer, Darold E. Crotzer, Jr., Clayton, for relators.
    John D. Schneider of Boas, Schneider & Walsh, St. Louis, for respondents.
   GUNN, Judge.

Relators Turco Development Company (Turco) and Security Mortgage Company, Inc. (Security) seek to make absolute a writ of prohibition preliminarily granted against respondents St. Louis County Circuit Court judges. The writ proceeding was instituted after a temporary restraining order was issued and upheld by respondents against Turco and Security at the behest of Allied Builders Corporation (Allied). Relators Turco and Security maintain that the issuance of the temporary restraining order was in excess of the respondent’s jurisdiction as Allied had adequate remedy at law and had failed to allege facts in its petition for temporary restraining order which would entitle it to equitable relief. We make the writ of prohibition absolute.

The pertinent facts commence on December 3, 1976 when Allied and Turco entered into a contract for the construction by Allied of two office-warehouse buildings. The contract provided for construction in three phases, with phase I to be completed within eight months from the time Allied was notified to proceed. If the completion time on phase I extended beyond ten months, the contract provided for liquidated damages of $25,000 payable to Turco. For failure, refusal or neglect to perform phases II and III, Allied agreed that it would be liable to Turco in the amount of $50,000 as additional liquidated damages. The contract also stipulated that “. . . Allied would deposit with Turco an unconditional and irrevocable bank letter of credit satisfactory to Turco that Turco may draw upon in the event Allied fails to perform as outlined herein.” Pursuant to the terms of contract Tower Grove Bank in St. Louis issued the irrevocable letter of credit on December 15, 1976. As a condition precedent to drawing upon the letter, proper endorsement was to be accompanied by a written certificate, signed on oath as to the truth of the facts it recited to the effect that Allied had defaulted on the contract. The default was to be specified. On May 19, 1978 Turco drew on the letter of credit the sum of $50,000 and stated in its certificate under oath that:

“Allied Builders Corporation has defaulted under its contract with Turco Development Company dated December 3, 1976. The default includes, but is not limited to, failure to complete the building and improvements which were (are) the subject matter of the contract in accordance with plans, specifications and times provided therein and in accordance therewith.”

On June 27, 1978, Allied applied for a temporary Restraining Order to require Turco and Security to return the $50,000. It was alleged that Turco deposited the money into an escrow account held by Security with the First National Bank of St. Louis. Allied contended that it had not breached the construction contract and that its property ($50,000 worth of credit) was improperly obtained by Turco and wrongfully detained by its agent Security. Respondent Judge Hoester granted the order which restrained both Turco and Security from expending or otherwise diverting any portion of the money. The order further mandated the return to Allied of the $50,000 until a hearing was held on the injunction application. On July 13, 1978, respondent Judge Lasky overruled Turco’s motion to dismiss the injunctive count and refused to quash the temporary restraining order. On July 26, 1978, Turco and Security filed an amended petition for a writ of prohibition to preclude enforcement of the restraining order. The writ was granted preliminarily on August 7, 1978.

The central issue in this case is whether an injunction which mandates the return of money drawn against an irrevocable letter of credit is proper when proof of the petitioner’s (Allied’s) entitlement to relief depends entirely upon an interpretation of the underlying contract. To permit enforcement of such an injunction would, in our opinion, defeat the usefulness of a letter of credit as a commercial instrument. A letter of credit is “an engagement by a bank or other person made at the request of a customer . . . that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit.” § 400.5-103(l)(a), RSMo 1969. In the instant situation, Turco sought a guarantee from Tower Grove Bank as an institution with an acceptable credit standing that Allied would have a resource to pay liquidated damages should it fail to comply with the underlying construction contract. In essence, the letter of credit provided a substitution for a performance bond. It should be emphasized, however, that the letter of credit contract is completely independent of the construction contract between Turco and Allied. § 400.5-109(l)(a), RSMo 1969. See also, Comment 1, § 400.5-114 (V.A.M.S.1969). “The function of an issuer of a letter of credit is only to finance the [contract] and not to otherwise participate therein. It is this isolation from the underlying . . . contract which enables letters of credit to be economically written.” Annot., 35 A.L.R.3d 1404, 1409, n.12 (1971). Consequently, Tower Grove Bank’s obligation to comply with the conditions specified in the credit contract extended only to an examination of the written certificate to determine that it stated with some specificity that Allied had defaulted. As stated in Comment 2, § 400.-5-109 (V.A.M.S.1969), the purpose of the examination is to determine whether the documents appear to be regular on their face. Tower Grove Bank apparently complied with that obligation. At that point, Tower Grove Bank was obligated to honor Turco’s demand under the letter of credit regardless of whether Allied actually breached the underlying contract. See, § 400.5-114(1), RSMo 1969. If the demanding party holds the letter of credit under circumstances which make it a holder in due course, then the issuer must honor the draft despite irregularities specifically referred to in § 400.5-114(2)(a), RSMo 1969, including forged and fraudulent instruments. Section 400.5-114(2)(b), provides authority for injunctive relief from honoring a defective letter of credit:

(b) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor, (emphasis added)

Though there has been little case law in this area, other jurisdictions have enjoined payment on a letter of credit where fraud or forgery could be alleged, e. g.: Dynamics Corporation of America v. Citizens National Bank, 356 F.Supp. 991 (Ga.1973); Shaffer v. Brooklyn Park Garden Apartments, 250 N.W.2d 172 (Minn.1977). But there has been consistent refusal to enjoin payment where there was no allegation of forgery or fraud, e. g.: Edgewater Construction Co., Inc. v. Percy Wilson Mortgage and Finance Corp., 44 Ill.App.3d 220, 2 Ill.Dec. 864, 357 N.E.2d 1307 (1976); Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 319 (1975). In this case, of course, no such allegations were made. While Article 5 of the Uniform Commercial Code does not specifically treat the relationship between a customer and beneficiary who are parties to an underlying contract, we believe policy reasons mandate that § 400.5-114(2)(b) governs the issuance of an injunction against such a beneficiary as well as against the issuing bank. The letter of credit about which the dispute arose here was expressly designated as an instrument which could be sold, assigned or transferred. Furthermore, a beneficiary is always capable of issuing drafts to third parties against the letter which the beneficiary holds. As stated in Frey & Son, Inc. v. Sherburne Co., 193 App.Div. 849, 184 N.Y.S. 661 (1920), where the court refused to issue temporary injunction against the beneficiary and the bank:

Interests of innocent parties who may hold drafts upon the letter of credit should not be made to suffer by reason of rights that may exist between the parties to the contract of sale in reference to which the letter of credit was issued. It would be a calamity to the business world . if for every breach of contract between buyer and seller a party may come into a court of equity and enjoin payment on drafts drawn upon a letter of credit issued by a bank. 1. c. 664.

(See also the concurring opinion of Judge Jiganti in Edgewater Construction Corp., Inc. v. Percy Wilson Mortgage and Finance Corporation, supra.) While we know in fact that the $50,000 was held in escrow during the five weeks between Turco’s demand and the issuance of the temporary restraining order, it is clear that Turco could have used the credit as it chose and had unlimited discretion as to the manner of exhaustion. See § 400.5-110, RSMo 1969. Ground for injunctive relief against the letter of credit beneficiary as provided by § 400.5-114(2)(b) has not been alleged nor does any appear to exist. Imposition of such relief under the circumstances would improperly trammel the free flow of commerce intended by the Uniform Commercial Code relating to letters of credit.

Even an analysis of the temporary restraining order under traditional rules governing injunctive relief leads us to the conclusion that the order should not have been granted. Allied alleged that it had no adequate remedy at law but legitimately could only complain that the loss of $50,000 credit was a threat to its ability to do business; that it would suffer irreparable harm as the result of the loss. These allegations are not sufficient to justify the relief which Allied sought. Of course, Turco now has the use of the $50,000, but such was the risk taken when Allied agreed to a liquidated damage clause. There is no evidence or suggestion that Allied would not be able to collect on a money judgment against Turco should it be judicially determined that Allied did not default. Even if Allied pleaded the contention, it would not be sufficient to support injunctive relief. Morris v. Maheras, 197 S.W.2d 998 (Mo.App.1946). The fact that a proceeding under a theory of contractual breach may be slower than an order in equity does not make this action for damages any less adequate. Allied has an adequate remedy at law and has been unable to establish irreparable injury or any other ground for injunctive relief. Consequently, the trial court had no jurisdiction to grant the temporary restraining order. State ex rel. General Dynamics Corp. v. Luten, 566 S.W.2d 452 (Mo. banc 1978); State ex rel. Phillips v. Yeaman, 451 S.W.2d 115 (Mo. banc 1970); State ex rel. National Bank in North Kansas City v. Yeaman, 479 S.W.2d 164 (Mo.App.1972).

We order the provisional rule be made absolute.

SNYDER, P. J., and SMITH, J., concur.

      . Allied charged that Security Mortgage was either a wholly owned subsidiary of Turco or controlled by it through interlocking directors and officers.

      . The facts and circumstances of Edgewater Construction Co., Inc. v. Percy Wilson Mortgage & Finance Corp., supra, leading to the holding that injunctive relief would not lie, are remarkably similar to those in this case. Edge-water, provides strong support for the result we reach here.


author: PER CURIAM:

text:
    John D. EGAN, Plaintiff-Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY CO., a corporation, Defendant-Respondent.
    No. 10439.
    Missouri Court of Appeals, Southern District, Division One.
    May 17, 1979.
    Edward V. Sweeney, Sweeney & Sweeney, Monett, for plaintiff-appellant.
    C. Wallace Walter, F. Bennett Lilley, Jr., Kim W. Reeves, Mann, Walter, Burkart, Weathers & Warden, Springfield, for defendant-respondent.
   PER CURIAM:

Plaintiff sued defendant railroad for actual and punitive damages because, as he alleged, defendant wrongfully discharged plaintiff and thereafter fraudulently induced plaintiff to execute a written resignation from his employment as a car loading claims clerk. Defendant moved the court nisi to dismiss the petition on the ground that the National Railroad Adjustment Board per 45 USCS § 151 et seq., had exclusive jurisdiction to adjudicate plaintiff’s averred grievances. The court obliged defendant and plaintiff appealed.

Because of plaintiff’s evident infractions of Rule 84.04(d), V.A.M.R., which will be noted anon, we do not reach the merits vel non of the appeal. However, were the appeal to be otherwise considered, we believe that Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), would fully justify the trial court’s dismissal of the petition.

The two points relied on by plaintiff read:

“I.
The jurisdiction of the National Railroad Adjustment Board is limited to matters, grievances and disputes between carriers and their employees.
The Railway Labor Act, Chapter 8
Title 45, United States Code, Sections 151-188
II.
When plaintiff executed his resignation from defendant’s employment, his employment contract terminated and his status as an employee ceased to exist, notwithstanding the fact that such resignation was brought about by defendant’s wrongdoing. Thereafter, the National Railroad Adjustment Board had no jurisdiction over his case. He had no standing to pursue any administrative remedies, either personally or by a designated representative, and his only remaining remedy is the one which he seeks in this action at law.
35 Am.Jur., Sec. 26, pages 462, 463
53 Am.Jur .2d, Sec. 35 [sic], page 111”.

Even assuming the correctness of the assertion made in plaintiff’s first point relied on, it is obvious that, in total disregard of the mandates of Rule 84.04(d), V.A. M.R., the point amounts to nothing more than an abstract statement of law which does not undertake to relate itself to the trial court’s action nor attempt to specify wherein and why the trial court erred in sustaining defendant’s motion to dismiss the petition. Payne v. St. Louis Grain Corp., 562 S.W.2d 102, 104[1] (Mo.App.1977); Estate of DeGraff, 560 S.W.2d 342, 345[4] (Mo.App.1977); State ex rel. Churchill Truck Lines, Inc. v. Public Service Commission, 555 S.W.2d 328, 330[1] (Mo.App.1977); Cavaness v. Armstrong, 525 S.W.2d 446, 447[1] (Mo.App.1975).

As to plaintiff’s second point relied on, and contrary to the requirements of Rule 84.04(d), V.A.M.R., which must be strictly applied [Glastris v. Union Elec. Co., 542 S.W.2d 65, 69[5] (Mo.App.1976); Associates Discount Corp. of Iowa v. Fitzwater, 518 S.W.2d 474, 477[2] (Mo.App.1974)], wherein and why the alleged wrongfully induced resignation terminated plaintiff’s employment, abrogated the jurisdiction of the National Railroad Adjustment Board, deprived plaintiff of administrative remedies and relegated him to an action at law in the state court is left for us to ponder, guess and conjecture. The point preserves nothing for appellate review. Hall v. Hall, 506 S.W.2d 42, 44[1] (Mo.App.1974). Moreover, the citations appended to this point pertain to “Termination [of employment contracts] by voluntary act of party.” (Emphasis supplied). These citations do not comport with an unlawful or involuntarily induced termination of employment. Neither do they purport to apply to or support the other abstractions penned in the point. When a point in an appellant’s brief is solely buttressed by authorities not germane, it is tantamount to a point presented naked of citations and preserves nothing for appellate cognizance. Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882, 886[8] (Mo.App.1974). We say this with full awareness of the pronouncements made in Thummel v. King, 570 S.W.2d 679, 687[12, 13] (Mo. banc 1978). It is patent in this instance that the point’s segments could either have been presented with appropriate and available citations of authority or counsel could have advised why such citations were unavailable. Taken in frag- > ments, the abstract pronouncements in this point, if true and conscientiously advanced, are ones for which precedent was surely available had effort been expended to comply with Rule 84.04(d), V.A.M.R. Rather, we are simply gifted with a menagerie of generalities bottomed upon seemingly fallacious hopes that this appellate court will unjustifiably discharge the briefing chores cast upon counsel.

It is to be additionally noted that plaintiff’s averred cause of action was predicated in part upon a written contract between defendant and plaintiff’s brotherhood. Albeit plaintiff alleged that the “Agreement and all the terms and conditions thereof are incorporated herein by reference and made a part of this petition as if set forth verbatim,” no attempt was made to plead the contract according to its legal effect, recite it in the pleading or attach a copy thereof to the pleading as an exhibit. Rule 55.22, V.A.M.R. Consequently, the provisions of the agreement, whatever they are, were not for consideration by the trial court nor this court in deciding whether the petition stated a cause of action. Berdych v. Bell Aerospace Corp., 19 A.D.2d 582, 240 N.Y.S.2d 448-449[1] (1963). Appeal dismissed.

All concur, except FLANIGAN, C. J., re-cused.

GREENE, J., not participating because not a member of the court when cause was submitted.


author: GREENE, Judge.

text:
    Bonford DEWITT and Cecil DeWitt, his wife, Plaintiffs-Appellants, v. Earl LUTES, Defendant-Respondent.
    No. 10919.
    Missouri Court of Appeals, Southern District, Division Three.
    May 21, 1979.

      James F. Waltz, Cape Girardeau, for plaintiffs-appellants.
    Kenneth W. Shrum, Marble Hill, for defendant-respondent.
   GREENE, Judge.

This case involves a boundary line dispute, a type of action that has long been a fertile source of litigation in the Ozarks. In February of 1975, plaintiffs filed suit against defendant, in the Circuit Court of Bollinger County, seeking determination of the interests of the respective parties in certain real estate at a point where the lands of plaintiffs and defendant had a common boundary. The disputed area consisted primarily of a small gravel bar located near Crooked Creek in Bollinger County. Plaintiffs, by their petition, and defendant, by his counterclaim, claimed title and right to possession of the area in question.

Trial of the case commenced on March 11, 1976, in the Circuit Court of Bollinger County. Plaintiffs, at that time, were represented by attorney Tim Mullin. Plaintiff Bonford DeWitt was present at the trial but his wife, Cecil, was absent due to illness. Defendant was present in person and by his attorney, Kenneth W. Shrum. Plaintiffs introduced evidence through the testimony of Bonford DeWitt, V. M. Baltz and Robert J. Hahn. At the conclusion of the testimony of witness Hahn, the trial judge stated, “You may step down. It is five after twelve and at this time we are going to take our recess for lunch. I ask that you be back at 1:15 P.M. We are in recess.” No further proceedings are shown in the record concerning the trial, other than under date of March 11, 1976, when the following entry appeared on the case docket sheet: “Come plaintiffs by attorney Tim Mullin and defendant by attorney Tim Mul-lin [sic]. Plaintiff presents testimony. Cause passed for settlement.” What occurred in the courtroom, after the noon recess, is not disclosed by any court record or docket entry. No written stipulation of settlement was filed and no record was made in open court by either party concerning the terms of any purported settlement.

The record is barren of any further entry until May 10, 1976, when attorney Mullin filed a motion to withdraw as attorney for plaintiffs, which motion was granted by the court. On May 26, 1976, defendant filed a pleading entitled “Motion to Compel Compliance with Agreed Settlement of Lawsuit”. In that motion, defendant alleged that the parties had, on March 11, 1976, during the noon recess of the trial, entered into a compromise settlement of their differences in the presence of the trial judge, and that said compromise settlement and agreement was as follows.

That the plaintiffs and defendant agreed that the division line and property line between their respective properties would be located as follows: That the corner marked and designated by county survey- or, Joseph A. Rielly, would be the corner to be used in arriving at a boundary line for the properties of the respective parties; it was further stipulated and agreed that the boundary lines between the plaintiffs’ and defendant’s property would run due North from the survey corner of Joseph A. Rielly, county survey- or, to the center of the county road as the same presently exists; that, thereafter, the division between the property would run in a northwesterly direction on a straight line to a point where the said line intersected the center of the county road and the north boundary line of the survey performed for the defendant by Joseph A. Rielly; that the defendant’s property line would then run in a westerly direction following the Rielly survey line; and it was stipulated and agreed that all property lying west of the last-described property line would be the sole, separate and absolute property of the defendant, Earl Lutes, and that the plaintiffs would make, execute and deliver to Earl Lutes a quit-claim deed for all real estate lying west of that said described boundary line; it was further stipulated and agreed that the defendant, Earl Lutes, would make execute and deliver to plaintiffs a quitclaim deed for all property lying east of said boundary line as above described; it was further stipulated and agreed that the court might enter its order quieting the title in the defendant as to land west of said division line and it might enter its order quieting the title in plaintiffs as to land east of said division line; it was further stipulated and agreed that the defendant would pay the costs of the survey to establish the boundary line as above described and the plaintiffs would pay the court costs.

Defendant further alleged the agreement was clearly made and verified, but that plaintiffs refused to abide by the alleged settlement and agreement and refused to execute quitclaim deeds to effectuate the agreement.

In his prayer, defendant asked for judgment against plaintiffs in accordance with his version of the agreement, that plaintiffs be ordered to execute quitclaim deeds, and that defendant be allowed $250.00 in attorney fees. Plaintiffs, through their new attorneys, then filed a pleading entitled “Motion to Strike Defendant’s Motion to Compel Compliance with Agreed Settlement of Lawsuit”, alleging 1) that defendant’s motion was not authorized by any supreme court rule; 2) that plaintiffs had refused and continued to refuse authority to their attorney to settle the lawsuit on the terms indicated in defendant’s motion; 3) that plaintiffs had not completed their testimony in the lawsuit, and had not rested their case; and, 4) that any discussion of a proposed settlement during the noon recess was of an informal nature and that any settlement was predicated upon events to be carried out in the future, to wit, the establishment by a surveyor of a proposed line and approval thereof by plaintiffs. Plaintiffs denied that any completed settlement and agreement was ever made. The trial judge then assigned the case to another division of the court where, on April 8, 1977, an evidentiary hearing was held on the motions.

On October 7, 1977, the trial court entered a judgment and decree sustaining the motion to compel compliance with the agreed settlement, and decreed that during the noon recess of the started but not completed trial, a compromise settlement and agreement had been entered into between plaintiffs and defendant on all matters in controversy and at issue. The trial court found, that as a result of the compromise settlement, plaintiffs and defendant were each vested with fee simple title to certain legally described real estate in the disputed area. The court taxed the court costs against plaintiffs and ordered defendant to pay the cost of the survey that was necessary to obtain the legal description for the judgment and decree. On October 17, 1977, plaintiffs filed a motion for new trial which was not acted on by the trial court. Plaintiffs then appealed to this court.

Plaintiffs raise four points on appeal. They argue that the trial court erred in granting defendant’s “Motion to Compel Compliance with Agreed Settlement of Lawsuit” and, in refusing to grant plaintiffs’ “Motion to Strike Defendant’s Motion to Compel Compliance with Agreed Settlement of Lawsuit” because, 1) even if a valid oral settlement agreement was entered into, it was unenforceable because the settlement was not evidenced by a writing, as required by the Statute of Frauds; 2) defendant failed to establish the existence of the settlement contract with sufficient certainty for the trial court to enter its decree; 3) no settlement contract was created due to mistake of fact, misunderstanding, and lack of mutual agreement; and, 4) the trial court was without authority to grant defendant’s motion since the record did not contain a stipulation or memorandum of settlement signed by the parties.

Since this was a court tried case, we apply the standards of Rule 73.01(3), V.A. M.R., and, in so doing, review upon the law and the evidence, as in suits of an equitable nature, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Such review requires that the judgment of the trial court be sustained unless there is no substantial evidence to support its judgment, unless such judgment is against the weight of the evidence, or, unless the court erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

POINT ONE

It is true that no person can be deprived of their property without due process of law, U.S.Const. amends. V and XIV; Mo.Const. art. I, § 10. While it is undisputed that the courts of justice shall be open to every person and certain remedy afforded for every injury to person, property or character, Mo.Const. art. I, § 14, parties to disputes have a right to waive their day in court and to equitably compromise and settle their differences, as it is the policy of the law to encourage freedom of contract and peaceful settlement of disputes. Sanger v. Yellow Cab Co., 486 S.W.2d 477, 480-481 (Mo. banc 1972).

A compromise settlement is a contract and, in the absence of specific statute, need not be in writing or in any particular form, unless the subject matter of the compromise is within the Statute of Frauds. In determining whether the Statute of Frauds is applicable to a compromise settlement, the courts are concerned with the intended effect of the compromise, and not with the question whether the parties’ antecedent claims are based on matters governed by the Statute of Frauds. If the compromise itself does not fall within the scope of the statute, then the statute is inapplicable to the compromise. Since a compromise which fixes a disputed or uncertain boundary line is not considered to involve a conveyance of land or passage of title, but is considered as an effort merely to clarify and give effect to the title which the parties already have, such an agreement is neither within the scope of the Statute of Frauds nor within the scope of the statutes regarding conveyance of real estate. 15A Am.Jur.2d, Compromise and Settlement, § 10, at pp. 782-783; 12 Am.Jur.2d, Boundaries, §§ 77 — 79, at pp. 613-616.

Missouri courts have consistently adhered to this doctrine. See Gillenwaters Building Company v. Lipscomb, 482 S.W.2d 409, 412 (Mo.1972) and cases cited therein. See also Landau v. St. Louis Public Service Company, 364 Mo. 1134, 1137, 273 S.W.2d 255, 257 (banc 1954) for the proposition that a settlement agreement need not be in writing unless the subject matter is within the Statute of Frauds. We, therefore, hold that the Statute of Frauds has no application here. The boundary line between the properties of plaintiffs and defendant was uncertain and in dispute, so the parties had a right to orally agree to a true boundary line. If there was such an oral agreement in this case, the parties are bound by it.

POINTS TWO AND THREE

Plaintiffs next contend that defendant failed, at trial, to establish the existence of an oral settlement contract with the certainty required by law to make it valid and binding, and that no settlement contract was created due to mistake of fact, misunderstanding and lack of mutual agreement. Defendant’s “Motion to Compel Compliance with Agreed Settlement of Lawsuit” was, in reality, a suit for specific performance. Specific performance is purely an equitable remedy. McDown v. Wilson, 426 S.W.2d 112, 117 (Mo.App.1968), and the determination of whether specific performance shall be decreed and what shall be the terms of the decree rests in the sound judicial discretion of the trial court. Landau v. St. Louis Public Service Co., supra, at 259. A court of equity will not make a contract between parties but will enforce one, if it is definite, certain, and complete, and, in making its decision, the court may rely on parol evidence to show the position of the parties, the subject matter, and other surrounding circumstances. Biggs v. Moll, 463 S.W.2d 881, 887 (Mo. 1971). The person requesting specific performance has the laboring oar in proving that he is entitled to it and even where, as here, the Statute of Frauds has no application, such proof must be by clear, convincing, and satisfactory evidence. Webb v. Webb, 498 S.W.2d 757, 758 (Mo.1973).

It is, therefore, necessary that we review the evidence that was introduced at the hearing. Defendant Earl Lutes, who was the movant, testified that when the trial on the merits in the quiet title suit was recessed for lunch on March 11, 1976, a proposed settlement was discussed by defendant and his attorney. After the discussion, they went back into the courtroom and met with plaintiff Bonford DeWitt, his attorney, Tim Mullin, and the trial judge. Defendant, at that time, in the presence and hearing of those persons, made this settlement offer, which he stated was:

[TJhat I would be willing to take a line from my corner up to the center of the county road, then up the county road to a point where the line had crossed again, and then in a westerly direction or southwesterly direction up the creek that I would be willing to abandon my claim to land that according to my survey was owned by me on the north and east side of this county road. And that also I would be willing to pay for the surveyor to survey this line and that Mr. DeWitt would pay the court costs.

The offer was made in the presence of DeWitt, his lawyer and the trial judge. The judge then said, “I would like to go up to this place and take a look at this property in dispute so that I will fully understand the agreement being made”. DeWitt and his lawyer agreed. DeWitt, the defendant, the lawyers, the trial judge and his court reporter drove to the site of the dispute. The persons referred to got out of their cars and, with the exception of the court reporter, were standing within a “couple of feet” of each other when the judge asked where the starting point of the line would be. Defendant pointed to a red surveyor’s marking tape hanging on a bush. Defendant then repeated his offer of settlement. DeWitt was standing next to him at the time. The parties, their lawyers and the judge then walked out the proposed line. The judge then said, “Let me understand this now” and then repeated the settlement offer that defendant had made. The judge then turned to DeWitt and said, “Now, Mr. DeWitt, do you understand this?”, and explained the proposal again to him, and DeWitt said, “I understand it but I’m not satisfied. I guess I’ll have to go along with it.” The judge then said, “Probably Mr. Lutes is not satisfied either”, and the defendant said, “No, I’m not satisfied either because I feel like I’m giving up some of my land”, and the judge said, “In cases like this where both of you have to give up something, you’re not satisfied, usually makes a good agreement.” The judge then said, “Well, we all understand the agreement now”, and asked Mr. Lutes if he was going to have the survey made. Defendant told the judge that the surveyor had been contacted and would be there that afternoon.

Defendant and DeWitt agreed to meet again at the land site at 2 p. m. so that the surveyor could be there to run the agreed line. Mr. Reilly, the county surveyor; his assistant, Utah Biehler; a neighbor, Milford Rhodes; defendant, his wife, son and sister; plaintiff, Bonford DeWitt and his lawyer Tim Mullin, all went to the gravel bar at 2 p. m. and were at the disputed area where the matter was further discussed. The surveyor set up his compass at the point of beginning that had been previously discussed and ran the measuring chain across the creek and down the road. He then marked his points and took his measurements to establish the line. DeWitt and his lawyer were in the immediate area when this was done. DeWitt wanted the survey- or to put in a reference stake for him and the defendant agreed. The persons referred to then left the scene. Neither DeWitt nor his lawyer made any objection to the boundary line established by the surveyor.

Joe Reilly, the county surveyor, testified that he had been in the courtroom at noon on March 11th. At the lunch break, the defendant, his attorney, plaintiff Bonford DeWitt, and plaintiffs’ attorney all asked him to go to the creek to survey the line. DeWitt stated to the surveyor that they had agreed on where the line was to be placed, and defendant indicated that the matter was settled and a property line had been agreed to. Reilly then ran the line. Neither DeWitt nor his attorney objected to the line, as it was measured by Reilly. Defendant and plaintiffs’ attorney both told Reilly that they needed to make quitclaim deeds, and plaintiffs’ attorney told Reilly to make up descriptions for the deeds and mail them to him and to the defendant. DeWitt was present when his lawyer made the request. Reilly prepared the description and mailed a copy to DeWitt, or his attorney, and mailed a copy to defendant.

Milford Rhodes, a property owner whose land was in close proximity to the disputed area, testified that on March 11, 1976, he was present at the time the surveyor ran the survey line. Reilly set his transit up and said something to DeWitt. DeWitt looked through the transit and then the surveyor started measuring. Rhodes was standing next to DeWitt, and DeWitt said, “Since this is finished with Earl (Earl Lutes, defendant) I guess this corner being here is goin’ to give me trouble with Luther (Luther Felker, another neighbor whose property touched another portion of the gravel bar).”

Judge Stanley Grimm then testified, by deposition, that he had been the trial judge in the original action, but that he had disqualified himself when the Motion to Compel Settlement was filed. Judge Grimm testified that when he recessed the original trial for lunch on March 11, 1976, he talked with the lawyers of both parties relative to a possible settlement. After several comings and goings and conferences between the lawyers and their clients regarding settlement, the lawyers indicated to the judge that a settlement had been made, that a common boundary line had been agreed to, and that the parties would exchange quitclaim deeds to effectuate the settlement. The judge suggested, in order to avoid a dispute later concerning the settlement, that they all go out to the gravel bar and be sure “that all of us knew . . . what the settlement was going to be, or what the boundary line was going to be”. DeWitt, Lutes, their lawyers, the court reporter, and the judge then went to the gravel bar. They did not stop to eat lunch as “there were numerous witnesses still to be heard that afternoon, and that if a settlement was satisfactory with everyone we wanted to go back and tell those witnesses they would not have to wait around”.

When they arrived at the gravel bar, they looked at some red surveyor flags on the creek bank. As the judge recalled the agreement, one flag on the south bank of the creek was to be a starting point and a line was to be run over the gravel road, then up the center of the road to another point. After considerable discussion and explanation, the judge said to DeWitt, “ ‘Now are you happy with this particular point, or are you satisfied with it?’ ” The judge recalled DeWitt answering, “ ‘I’m not happy, but I am satisfied and I am willing to go along with it’, or words to that effect.” The judge then asked the defendant a similar question and the defendant indicated that he was willing to be bound by the agreement.

There followed some discussion with both DeWitt and Lutes about having the survey- or draw up a description to “meet that which they had agreed on there”, and some discussion as to who would pay for that expense and who would pay the court costs. As the judge put it, “It was just the typical wrap-up of a lawsuit type of discussion that all of us had been involved in”. He stated that the boundary line agreed on in the settlement did not coincide with either the surveyed line that plaintiffs claimed, or that defendant claimed, but was somewhere in between. It was a compromise and therefore, it was necessary that the survey- or give them a description for the new line so that a decree could be prepared, giving the legal description in question, and so that proper quitclaim deeds could be prepared to be signed by the respective parties.

On cross-examination, the judge asked which lawyer had told him in the courtroom that a settlement had been reached. The judge answered that he had been advised by one, or maybe both of the lawyers that a settlement had been reached but couldn’t remember who said it, although both were there. No docket entry was made at that time. On redirect examination, the judge said that the settlement boundary line that they all looked at when they went to the creek was just a translation of “the settlement in the courtroom to the settlement on the land to be sure there was no misunderstanding . . . .” The judge also said that the two attorneys, plaintiff Bonford DeWitt and defendant Lutes all looked at the settlement line, walked up the road together, got to the end line, vocalized for a half an hour or more and “agreed on the particular line” (emphasis ours). This testimony concluded defendant’s evidence.

Plaintiffs then presented evidence. Mrs. Cecil DeWitt, one of the parties plaintiff, testified that she was the wife of Bonford DeWitt and that she did not attend the trial on March 11, 1976, because of illness. She said that Mullin had discussed settlement with her husband prior to the trial, and that she had listened. After the trial, her husband returned to St. Louis, where the De-Witts lived, and told her the surveyors were supposed to get together and submit a proposal that they were to agree with, or not agree with. On cross-examination, she stated that she had confidence in her lawyer, Mr. Mullin; that she had confidence in her husband and his abilities, and that she had confidence in his ability to handle the lawsuit and matters relating thereto. She had agreed that the lawsuit be tried without her being present. Attorney Mullin never did anything in connection with the lawsuit that she did not want him to do, prior to the date of March 11, 1976. She was aware that Mullin had written defendant’s lawyer prior to trial relative to settlement possibilities, and that Mullin had tried, in many ways, to settle the matter without going to trial, and that she was relying on his judgment and her husband’s judgment as to the best way to approach the lawsuit. She did not sign the affidavit filed by her husband that was attached to their motion to strike. She testified that she supposed that whatever her husband’s decision was (in connection with the lawsuit) was agreeable with her. She thought Mr. Mullin had sent a copy of the proposed decree and the quitclaim deeds to the De-Witts, and she and her husband had discussed the documents. Upon questioning by the court, she admitted that there had been settlement discussions before trial involving the DeWitts, and their lawyer. Mr. Mullin and her husband wanted to settle the case if possible without a hearing. She was aware that Mullin was going to represent both her and her husband at the trial, even though she was not going to be there. She did not have any discussion with Mullin regarding settlement before the trial. She then said she didn’t know what was approved or brought up regarding any settlement, other than what her husband had told her.

Bonford DeWitt, in his testimony, said that when he went to the location of the property in dispute, that his lawyer told him that a survey would be made, and quitclaim deeds would be prepared and sent to him, so that he could consult with his wife and decide on whether they would agree to the proposal as a final settlement. He denied saying to Mr. Rhodes that he had settled with Lutes. He admitted talking to Judge Grimm at the gravel bar but denied telling the judge that he accepted the settlement. On cross-examination, he stated that he had fired attorney Mullin, with his wife’s approval, and had gone to Legal Aid to inquire as to the meaning of the term “Passed for Settlement”. He had the approval of his wife to hire attorney Mullin and to file the affidavit in opposition to a motion for security for costs. He went to trial without his wife, without asking for a continuance so that she could appear at trial, and had her permission to do so. He knew that defendant had a large number of witnesses at the trial. He admitted that he had discussed settlement with defendant and his lawyer before they went to the site of the dispute; that he received a copy of the survey from Mr. Reilly that he ran on March 11, 1976; that he received a copy of the quitclaim deeds; and that he may have received a copy of the decree from Judge Grimm. He admitted that the boundary line drawn by Reilly after the parties went to the gravel bar was “just as the proposal was put to me by Mr. Mullin”. He further admitted, under questioning by the court, that after the meeting at the gravel bar, he came back to the courthouse and participated in discussions relating to the completion of the survey, the general description of the line, the exchange of quitclaim deeds, the payment of court costs, and the payment of the surveyor’s fee. He admitted that he never told Judge Grimm, defendant, nor defendant’s attorney, at any time, that he thought the settlement was subject to later approval, and he admitted that he did not, at any time, hear his attorney tell anyone the settlement was going to be subject to later approval. Further, he admitted that he was willing to give up something to keep from going back into court. This concluded the testimony for plaintiffs. Neither party presented further evidence.

The evidence referred to above, in our opinion, established that a valid settlement agreement had been made by the parties, and that there was no mistake of fact, misunderstanding, or lack of mutual agreement that would, by law, vitiate the agreement. We hold that the judgment of the trial court, in finding that a valid and binding compromise and settlement agreement had been made and agreed to by plaintiffs and defendant on March 11, 1976, and in decreeing that plaintiffs and defendant were vested with fee simple title to certain real estate in Bollinger County, the legal description of which was contained in the decree, was supported by clear, convincing and substantial evidence, was not against the weight of the evidence, and properly declared and applied the law, thus meeting the tests of Murphy v. Carron, supra, and Webb v. Webb, supra.

Plaintiffs, in their brief, contend that even if we find that plaintiff Bonford De-Witt agreed to a valid compromise and settlement, that such would not be binding on plaintiff Cecil DeWitt as she did not participate in any settlement discussions, and did not ratify any settlement agreement. We disagree. Cecil DeWitt was a tenant by the entirety in the disputed land with her husband, Bonford. They jointly hired attorney Tim Mullin to represent them in the dispute. Although the lawsuit was set for trial several months prior to March 11,1976, no continuance was requested when it appeared that she would be unable to attend. The affidavits in opposition to defendant’s motion for security for costs and in opposition to defendant’s motion to compel performance were not signed by her but were signed by her husband. She admitted that she had authorized her husband to sign a number of documents relative to the case for her benefit, as well as for his benefit. She admitted that she relied on her husband and her attorney to use their best judgment in handling the litigation.

The agency of a husband for a wife, and of an attorney for a client, may be shown by direct evidence, or by such facts and circumstances as will authorize a reasonable and logical inference that such agents were empowered to act for her, or that she ratified their authorized acts. Wenneker v. Frager, 448 S.W.2d 932, 936, 937 (Mo.App.1969). The record is clear that Cecil DeWitt had delegated authority to her husband and to her attorney to settle and compromise the lawsuit and therefore, the settlement that they consummated is legally binding on her.

POINT FOUR

The only remaining point raised by plaintiffs on appeal is that the trial court was without power to grant defendant’s “Motion to Compel Compliance with the Settlement Agreement”, as the court record does not contain any written stipulation or memorandum of settlement signed by the parties.

Neither Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255 (banc 1954) or Wenneker v. Frager, supra, cited in plaintiffs’ brief on this point, support their position. In Landau, the trial had commenced, as was the situation here. Mrs. Landau’s attorney conferred with her and with defendant’s attorney, after which Mrs. Landau and the attorneys orally agreed to a settlement. The attorneys then signed a memorandum which said, “passed for settlement”. When Mrs. Landau subsequently refused to sign a release and stipulation for dismissal on motion, she was directed by the trial court to comply with the terms of the compromise settlement. See Landau v. St. Louis Public Service Co., 267 S.W.2d 364, 365 (Mo.App.1954). While it is true that in Wenneker v. Frager, supra, a written memorandum which had been signed by the parties was filed by one of the attorneys after the case had been passed for settlement, the opinion does not hold that the absence of such a written stipulation would invalidate the settlement.

It is not important that the parties did not follow the procedure utilized in Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 387, 221 S.W.2d 751, 753 (1949), of making a record in open court by having the parties testify to the terms of the settlement, or by signing a written memorandum of settlement, as was done in Wenneker v. Frager, supra, because as previously stated, a compromise settlement agreement need not be in writing unless the subject matter is within the Statute of Frauds, and we have held that the Statute of Frauds does not apply in this case.

In summary, we conclude that plaintiffs, Bonford and Cecil DeWitt, are both bound by the settlement agreement, as found by the trial court, and that defendant’s motion to compel compliance with the compromise settlement agreement was a proper means of seeking specific performance.

Having acquired equitable jurisdiction herein, the trial court retains jurisdiction until full justice has been done.

The judgment is affirmed and the cause remanded for such further proceedings and orders as are necessary to enforce the judgment.

BILLINGS, J., recused.

FLANIGAN, C. J., and MAUS, J., concur.


author: PER CURIAM;

text:
    Bob ELMORE, d/b/a Bob’s Real Estate, Plaintiff-Appellant, v. James WHORTON, Individually and as agent for Robert Leonard, d/b/a the R. Leonard Company, Robert Leonard, d/b/a the R. Leonard Company, John Huff, Individually and as agent for Ernest Woodall, d/b/a Republic Continental Real Estate Company, and Ernest Woodall, d/b/a Continental Real Estate Company, Defendants-Respondents.
    No. 11199.
    Missouri Court of Appeals, Southern District, En Banc.
    May 23, 1979.

      No appearance for plaintiff-appellant.
    Gerald H. Lowther, Lowther, Johnson & Baird, Springfield, for defendants-respondents.
   PER CURIAM;

Plaintiff sued defendants for what he alleged was his share of a previously paid real estate broker’s commission. Defendants answered and counterclaimed for actual and punitive damages for “illegal, improper, and perverted use of the process.” The jury returned verdicts in favor of defendants on plaintiff’s petition and awarded defendants $1,000 actual damages on their counterclaim. Subsequent to the filing of plaintiff’s post-trial motion and in consideration thereof, the trial court, in its “Minutes of Proceedings”, wrote: “The court sustains plaintiff’s motion, which is headed ‘Motion for New Trial,’ but is actually a motion for a new trial or in the alternative motion for directed verdict, in that the court should have sustained the motion for directed verdict at the close of all the evidence as the counterclaim did not have evidence to support the court’s Instruction No. 5. The jury verdict on the counterclaim is set aside. The verdict of the jury on plaintiff’s petition in favor of defendants is affirmed by the trial court.” Plaintiff appealed “from so much of said judgment which denied his claim for a share of a real estate broker’s commission [but not] from the judgment in his favor [on defendants’ counterclaim].”

The “Minutes of Proceedings,” supra, may suffice as a minute or docket entry but falls far short of constituting a final judgment from which an appeal may be taken. Gray v. Bryant, 557 S.W.2d 489 (Mo.App.1977); Riverside Chemical Co. v. Hawkins, 555 S.W.2d 369, 370 (Mo.App.1977); Cochran v. DeShazo, 538 S.W.2d 598, 601[6] (Mo.App.1976). “In Missouri, a final judgment forms the basis for appellate review. Section 512.020, V.A.M.S.; Rule 74.-01, V.A.M.R. The absence of a final judgment deprives this court of appellate jurisdiction and would convert any purported review into a meaningless act. The appeal must be, and is, dismissed for lack of a judgment.” Whiteaker v. City of Salem, 557 S.W.2d 489, 490 (Mo.App.1977).

It is so ordered.

All concur, except FLANIGAN, C. J., and MAUS, J., recuse.

      . The Rules of Civil Procedure, V.A.M.R., contain no authorization for an after-trial “motion for directed verdict.” The only specifically authorized after-trial motions following a jury trial and verdict are a motion for a new trial, Rule 78.07, and a motion for judgment notwithstanding the verdict. Rule 72.01(b); Milner v. Texas Discount Gas Co., 559 S.W.2d 547, 550[5] (Mo. App.1977). However, the trial court’s error on nomenclature did not render its action on the motion a nullity. Coffman v. Kansas City Stock Yards Co. of Maine, 540 S.W.2d 175, 178[5] (Mo.App. 1976).


author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Merle Leon PALMER, Appellant.
    No. 10761.
    Missouri Court of Appeals, Southern District, Division One.
    May 24, 1979.
    Phillip A. Glades, Joplin, for appellant.
    John D. Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Chief Judge.

A jury found defendant guilty of assault with intent to do great bodily harm without malice aforethought and he received a sentence of five years’ imprisonment. Defendant appeals.

Defendant’s sole “point relied on” is that he was entitled to a new trial because of jury misconduct and that the trial court erred in failing to grant that relief. This claim of error was assigned initially in defendant’s motion for new trial.

The alleged misconduct consisted of a jur- or making an unauthorized inspection of the yard of the house where the offense occurred. Defendant claims that the inspection took place after the close of the first day's session of the two-day trial and that the juror, on the second day (and prior to the return of the verdict) discussed the results of the inspection with at least one other member of the jury.

The only testimony concerning the alleged misconduct came from the juror who made the inspection. The state objected to the testimony on the ground that the juror lacked competency to impeach the verdict. The trial court received the evidence “subject to the objection” but made no express ruling thereon. The trial court denied the motion.

The briefs of the parties devote considerable attention to the issue of the competency of the juror to impeach the verdict. That issue need not be decided for the reason that the point has not been preserved for appellate review.

“Where a claim of misconduct on the part of a juror is first presented in a motion for new trial, ‘an affirmative showing must be made that defendant and his counsel were ignorant of the fact until after the trial.’ State v. Reeder, 394 S.W.2d 355, 357[1] (Mo.1965). This record contains no such showing. The point has not been preserved for appellate review. Reeder, supra; State v. Turley, 452 S.W.2d 65, 69[8] (Mo.1970); State v. Maples, 96 S.W.2d 26, 30[13] (Mo.1936); State v. McVey, 66 S.W.2d 857, 859[7-9] (Mo.1933); State v. Warren, 469 S.W.2d 662, 663[2] (Mo.App.1971); State v. Robbins, 455 S.W.2d 24, 27[7, 8] (Mo.App. 1970).” State v. Bollinger, 560 S.W.2d 606, 608[3] (Mo.App.1978).

Additional authorities to the same effect are cited marginally. No such “affirmative showing” is in the instant record.

The judgment is affirmed.

TITUS, J., and CAMPBELL, BARKER and HENRY, Special Judges, concur.

      . “[T]he rule is well established that a jury speaks only through its verdict and that a juror will not be heard to impeach a verdict, whether the alleged misconduct occurred inside or outside the jury room. State v. McDaniel, Mo., 392 S.W.2d 310. In the same tenor is State v. Beal, Mo., 474 S.W.2d 830, that testimony by a juror as to misconduct is inadmissible to impeach the verdict.” State v. Foster, 490 S.W.2d 659, 661 [2] (Mo.App.1973).

      . State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 104[8] (1935); State v. Vinson, 503 S.W.2d 40, 41 (Mo.App.1973); State v. Foster, 490 S.W.2d 659, 661 (Mo.App.1973); State v. Blair, 280 S.W.2d 687, 689[2] (Mo.App.1955). See also 58 Am.Jur.2d 269 New Trial § 78.


author: HARBISON, Justice.

text:
    John T. SMITH, Appellant-Plaintiff, v. ROCKWELL INTERNATIONAL CORPORATION, Appellee-Defendant.
    Supreme Court of Tennessee.
    June 4, 1979.
    Richard H. Winningham, Chattanooga, for appellant-plaintiff.
    Jeffrey L. Cleary, Chattanooga, for ap-pellee-defendant.
   OPINION

HARBISON, Justice.

In this case the trial court dismissed an action brought under the Tennessee Workmen’s Compensation Act, and the employee has appealed. We affirm the decision of the Chancellor.

Although the case involves an important legal question, it was disposed of entirely upon the allegations of an extremely brief complaint and a very short amendment thereto.

The complaint alleges that appellee, Rockwell International Corporation, operating through a wholly-owned division and subsidiary, Rockwell International, Collins Division, in Richardson, Texas, was the principal contractor on a project in New Mexico.

By amendment, the complaint alleged that the appellee does business in the State of Tennessee. At no point, however, is there any allegation that appellee is qualified or operating under the provisions of the Tennessee workmen’s compensation law, nor is there any allegation that either of the parties had ever elected to comply with or bring themselves under that law.

The complaint alleges that in February 1978 appellant was hired by “defendant’s subcontractor,” a Georgia enterprise, and it alleges that the contract of employment between that subcontractor and appellant was entered into in Chattanooga, Tennessee.

Appellant alleges that he worked on the New Mexico project for Rockwell International Corporation until he was injured as a result of an accident on April 17, 1978. He alleges that he presented his claim to his immediate employer, which refused to pay workmen’s compensation benefits. By amendment, it was alleged that appellant’s immediate employer also does business in Tennessee but does not have the number of employees requisite for coverage under either the Tennessee or Georgia workmen’s compensation law. The complaint as amended is silent as to whether or not appellant’s immediate employer did or did not comply with the workmen’s compensation law of New Mexico. Likewise it does not state whether appellee had insured its liability under the New Mexico workmen’s compensation law as provided in New Mexico Statutes Annotated, § 52-1-4 (1978).

By amendment to the complaint, appellant’s immediate employer was made an additional party defendant, but the suit was dismissed as to that employer for lack of coverage under T.C.A. § 50-902(a) since the employer did not have as many as five employees. Attached to that employer’s motion to dismiss was an affidavit stating that appellant’s contract of employment was not entered into in the State of Tennessee. No appeal has been taken from the dismissal of appellant’s claim against his immediate employer, nor was the affidavit of that employer considered in connection with the motion to dismiss filed on behalf of appellee.

As the case comes before us, therefore, appellee’s motion to dismiss must be construed as admitting for present purposes that appellant was employed by his immediate employer in the State of Tennessee. Appellant asserts that under provisions of the Tennessee Workmen’s Compensation Act, T.C.A. § 50-915, appellee, as principal contractor, became a “statutory employer” of appellant, and he further insists that under T.C.A. § 50-917, since the contract of employment occurred in Tennessee, the Tennessee workmen’s compensation law has extraterritorial effect so as to enable appellant to proceed thereunder in this state.

We are unable to agree with either of these contentions under the very brief factual allegations contained in the record. For purposes of the motion to dismiss, it is conceded that Rockwell International Corporation was the principal contractor on a construction project in New Mexico. Presumably it insured its workmen’s compensation liability in accordance with statutory requirements of that state, and it should have required that appellant’s immediate employer do likewise, if he employed the requisite number of persons under New Mexico law.

As previously stated, there is no allegation whatever that either appellant or ap-pellee had elected to be bound by or to accept the provisions of the Tennessee Workmen’s Compensation Act, nor is any other contact between Tennessee and the appellee shown in the record, other than the fact that appellee is qualified to do business in this state and has an agent for service of process here.

There is abundant authority, of course, for extraterritorial application of the Tennessee Workmen’s Compensation Act, when the contract of employment is made in this state. See T.C.A. § 50-917. This statute and the cases construing it were reviewed in some detail by this Court in the recent case of Ray v. Aetna Casualty & Surety Co., 517 S.W.2d 194 (Tenn.1974). In that case the contract of employment was not entered into in Tennessee, nor was the work performed in the state. The only contact which the employee had with Tennessee was that he was a resident of the state. Under the circumstances this Court sustained a dismissal of his compensation claim brought in Tennessee, holding that the workmen’s compensation law of Missouri was applicable.

In the present case there was never a contract of employment, as such, entered into between appellant and appellee. Any liability which appellee may have to appellant, under the workmen’s compensation law of this or any other state, must derive from and be dependent upon statutory provisions such as T.C.A. § 50-915, making principal contractors liable under certain circumstances to employees of subcontractors. Most of the states have statutes similar to that of Tennessee just cited, and a contractor held liable thereunder is frequently referred to as a “statutory employer.” See IB Larson, Workmen’s Compensation Laws, § 49.11 (1978). Although appellant’s complaint does not at any point state his place of residence, it may be inferred that he is a resident of Tennessee from a recital contained in the oath for poor persons which he executed in lieu of a cost bond. We therefore conclude that the contacts between appellant and Tennessee are that he is a resident of the state and that his immediate employer contracted in this state for appellant to perform work on the New Mexico project.

These factors, in our opinion, are insufficient to subject a nonresident principal contractor, whose only liability can be that of a “statutory employer,” to the provisions of the Tennessee Workmen’s Compensation Act, where that nonresident employer neither hired the claimant in Tennessee, had him perform any work in the state, nor had any other contact with the State, insofar as the record discloses. It seems to us that the principal contractor on a major construction site, such as we infer from the briefs was involved here, would necessarily insure its workmen’s compensation liability in the state where the construction site or project was situated, and that it neither could nor should be expected to insure such liability under the laws of every state in which an employee of a subcontractor might happen to reside.

We have carefully examined the authorities cited by appellant, but we do not deem them controlling in the present case. Appellant relies principally upon Rodwell v. Pro Football, Inc., 45 Mich.App. 408, 206 N.W.2d 773 (1973), in which a resident of Michigan was employed in that state to play professional football for a foreign corporation. It was contemplated that his services would be performed primarily outside of the state, and he was in fact injured at a training camp in Pennsylvania. The Michigan court held that the employer was subject to a workmen’s compensation claim in Michigan, under the state’s extraterritorial statutory provisions similar to T.C.A. § 50-917. In that case however, the employer had contracted directly with the employee, and was not in the status of a “statutory employer.”

Appellant also cites and relies upon International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W.2d 488 (1971), in which a resident of Arkansas was employed by a Texas company to work in the latter state. The employer did business in Arkansas, had a business office there, and contracted directly with the employee in Arkansas. Further, the employee’s orders and directions for work as well as his paychecks emanated from the employer’s headquarters in Arkansas.

We are of the opinion that the trial court correctly dismissed the present action because of an insufficient showing that the claim is subject to the workmen’s compensation law of this state. The judgment of dismissal is affirmed at the cost of appellant.

HENRY, C. J., and COOPER, FONES and BROCK, JJ., concur.


author: HENRY, Chief Justice.

text:
    Raymond W. BARNES, Plaintiff-Appellant, v. NATIONAL MORTGAGE COMPANY, Defendant-Appellee.
    Supreme Court of Tennessee.
    June 4, 1979.
    James 0. Lockard, Memphis, for plaintiff-appellant.
    Max D. Lucas, Jr., Memphis, for defendant-appellee.
   OPINION

HENRY, Chief Justice.

Appellant Raymond Barnes brought this action against the National Mortgage Company seeking workmen’s compensation benefits for an injury to his back. The trial court ruled that Barnes was an independent contractor and therefore not entitled to workmen’s compensation benefits. We affirm.

I.

Appellant Barnes and his wife operated the Barnes Wallcovering Company. In April 1976, Elliot Kolker, the construction manager for National, hired Barnes to paint and wallpaper homes that were under construction or had been foreclosed upon by National. After completing work on the homes for which he originally was hired, Barnes continued to work for National on similar projects. The construction of new houses and the repair of repossessed homes apparently was a consistent part of National’s business.

The payment terms established between Kolker and Barnes varied according to the type of work: Barnes apparently received an hourly wage for painting in the repossessed homes, but billed National on a square footage basis for other painting. The charge for wallpapering was $5.00 per roll. His wife normally worked with him, as did his mother on an occasional basis.

Although National deducted neither social security nor withholding tax from Barnes’ checks, it deducted five percent for workmen’s compensation coverage. Kolker stated that the deduction covered employees of companies .hired to work for National, but did not cover the owners of the companies. The workmen’s compensation insurance contract, however, was not introduced at trial, and Barnes and his wife had no other regular employees while working' for National. In addition, when Barnes entered the hospital, Kolker confirmed that he was covered by National’s workmen’s compensation carrier.

Barnes was not required to be at work at any particular time, and he occasionally performed jobs for other companies during the time that he was working for National. Kolker would tell Barnes which house to work on if a particular house had to be finished ahead of schedule for a business reason, but Barnes otherwise was free to control the progression of the work. Although Barnes supplied his own tools, Kolker frequently supplied or determined the brand of paint. Kolker was on the site daily, conferring with Barnes and inspecting his work. He had complete hiring discretion in the jobs he supervised, and could have terminated the relationship at any time.

Upon these facts the trial court determined that Barnes was an independent contractor rather than an employee within the meaning of the workmen’s compensation act.

II.

Although the workmen’s compensation act is to be given a liberal construction in favor of finding a worker an employee rather than an independent contractor, our cases recognize that this legal characterization depends upon an ad hoc analysis of the facts. Wooten Transportation, Inc. v. Hunter, 535 S.W.2d 858 (Tenn.1976); Smart v. Embry, 208 Tenn. 686, 348 S.W.2d 322 (1961).

In Cromwell General Contractor, Inc. v. Lytle, 222 Tenn. 633, 439 S.W.2d 598 (1969), the Court listed the factors relevant to determining whether an employer-employee relationship existed or the worker was an independent contractor. As summarized by the Court, the factors include:

(1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment between the alleged employer and employee, (4) whether or not the alleged employee furnishes his own helpers, and (5) whether or not the alleged employee furnishes his own tools. 439 S.W.2d at 601

The Court qualified these factors by noting that:

These tests are no more than a means of analysis. They are not to be applied abstractly, nor are they absolutes which preclude examination of each work relationship as a whole. Utilization of these tests depends upon the salient facts of a particular relationship. No one test is infallible or entirely indicative of the legal characterization to be given to a particular relationship. The decisional value of any single test is commensurate with the degree of its applicability to the particular case. Id.

Although certain elements of Barnes’ connection with National provide evidence of an employer-employee relationship, the overall, predominant aspects indicate that Barnes was an independent contractor. He supplied the tools of his trade, was paid partially on a per job basis, scheduled his working hours, apparently had the right to hire additional helpers, and was free to accept, and actually did accept, other jobs while working for National. Although the Court in Wooten, supra, stressed the right to control, it has been noted that:

The mere fact that the principal contractor reserves a right to supervise or inspect the work during its performance, does not make the subcontractor an employee or mere servant, where there is no right of control of the method of performance, except to see that the end result conforms to the plans and specifications. Smart v. Embry, 348 S.W.2d at 324-25

Thus, under the facts presented in this case, we affirm the trial court’s determination that Barnes was an independent contractor rather than an employee.

III.

Barnes also claims that National is estopped to deny workmen’s compensation coverage because of the five percent deduction from his wages for insurance and because Kolker allegedly represented to Barnes that he was covered by National’s insurance carrier. Kolker testified that since most subcontractors do not carry workmen’s compensation insurance, it is standard practice to deduct a certain percentage of the wages depending upon the degree of risk inherent in the work performed by the subcontractor. Although Kolker admitted that he erroneously told the hospital that Barnes was covered by workmen’s compensation insurance, he denied ever making such a representation to Barnes. The trial judge accepted Kolker’s version of the facts and there is material supporting evidence. We cannot hold, as a matter of law, that Barnes was estopped.

The costs are taxed against appellant.

Affirmed.

FONES, COOPER, HARBISON and BROCK, JJ., concur.