author: RENDLEN, Judge.

text:
    Esther FIX, Plaintiff-Appellant, v. FIX MATERIAL COMPANY, INC., a corporation, Defendant-Respondent.
    No. 36648.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 8, 1976.

      Donald S. Hilleary, Clayton, for plaintiff-appellant.
    Husch, Eppenberger, Donohue, Elson & Cornfeld, Carroll J. Donohue, Harry B. Wilson, St. Louis, for defendant-respondent.
   RENDLEN, Judge.

Esther Fix, a minority shareholder, sued under § 351.485, RSMo.1969, to compel liquidation of a closely-held corporation for alleged illegal and oppressive conduct by those controlling the corporation. At the close of plaintiffs case, the trial court granted defendant’s motion to dismiss under Rule 67.02 and from the order dismissing her petition with prejudice, plaintiff appeals.

A suit to compel liquidation under the Missouri Statute is an equitable action, Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944, 946[2] (1950); Kirtz v. Grossman, 463 S.W.2d 541, 545[7] (Mo.App.1971); and in such actions a motion to dismiss at the close of plaintiff’s case constitutes a submission of the case by defendant as it stands when the motion is offered, 30A C.J.S. Equity § 579 at 643. The trial court is to weigh the evidence, resolve conflicts and on that basis rule the motion. Rigg v. Hart, 255 S.W.2d 778, 779[3] (Mo.1953). On appeal we review the record anew on the facts and applicable law, giving due deference to the trial court’s superior opportunity to judge the credibility of witnesses. Rule 73.01(3). We are, however, to affirm the decree of the trial court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30 (Mo. banc, 1976). Further, we consider evidence properly admissible and exclude from consideration evidence improperly admitted. South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 589[14] (Mo.App.1975).

A defense witness, G. L. Alberici, was offered during plaintiff’s case to which plaintiff made no objection and nothing in the record reflects why the witness was called out of turn. The trial court did not consider the Alberici testimony when ruling the motion to dismiss and plaintiff complains because the cross-examination developed testimony favorable to her case. Ordinarily, over proper objection, no part of defendant’s evidence would be presented during plaintiff’s case and if so admitted, would not be considered in ruling the motion. However, no objection appearing, the court in this case should have considered testimony of Alberici since a motion to dismiss submits the case for final determination as it stands when the motion is offered. We find no prejudice by the court’s action and consider this testimony in our review.

Contending for reversal, plaintiff argues there was substantial evidence of oppressive and illegal conduct by those in control of defendant Fix Material Company, Inc., within the meaning of § 351.485, RSMo. 1969. More particularly, that the corporation failed to fulfill its purpose of operating at a profit for shareholders; that the persons in control of the corporation acted oppressively by concealing financial information from plaintiff, by failing to attend the special shareholders’ meetings called by plaintiff, by voting themselves twenty-year employment contracts as officers, and by engaging in price fixing contrary to § 416.-040, RSMo.1969. Plaintiff’s allegations focus on corporate operations from 1963 through 1972.

Defendant is a closely-held Missouri corporation engaged in the business of production, sale and delivery of ready-mix concrete, building and construction supplies. The company’s annual audits and financial statements show a marginally profitable enterprise in a highly competitive industry. The major shareholders at the time of incorporation (sometime prior to 1963) were Ralph T. Fix and his brother Joseph E. Fix, plaintiff’s deceased husband. Apparently, Joseph held his shares jointly with plaintiff. Other shares issued and outstanding were owned by Rosalia Fix, Donald Fix, Mary Fix, Dorothy Wieck, Sylvester W. Wieck, F. Joseph Weidinger and Virginia Marie Weid-inger.

In 1963 the officers were Ralph T. Fix, his son Donald Fix, F. Joseph Weidinger and Joseph E. Fix. Though the company’s investment in land and equipment was small, 1963 was a successful year with an operation’s profit of $34,619 and a net profit of $33,142. The investment in land and equipment was nearly doubled in 1964 with the purchase of a second concrete plant, new trucks, machinery and equipment. Construction of the plant was financed by a ten-year monthly amortized loan secured by first deeds of trust on the new facility and the existing plant. In conjunction with this expansion, the shareholders, including plaintiff, signed a buy-sale agreement as to corporate stock, which among other things, prohibited payment of cash dividends during the ten-year term of the loan. About this time shareholders Dorothy and Sylvester Wieck executed a ten-year irrevocable voting proxy in favor of Thomas J. McGar-ry, attorney for the corporation; the same year three officers, Ralph T. Fix, Donald Fix and F. Joseph Weidinger, with shareholder approval, received twenty-year employment contracts with the company. Although he was then a salaried officer, plaintiff’s husband, for reasons not appearing, received no employment contract. The interim financial statements for 1964 showed an operating profit of $30,280 and a net profit of $33,972.

Operating profits were down in 1965 to $6,615, though with income from other sources the company realized a net profit of $12,183. There was evidence the decrease stemmed primarily from costs incurred in the expansion effort and slow conditions in the construction industry. Plaintiff’s husband, Joseph E. Fix, died in 1965. After his death, Ralph T. Fix, Donald Fix and F. Joseph Weidinger continued as officers. Donald assumed the duties previously performed by Joseph.

The company sustained an operating loss in 1966 of $13,361 reduced by income from other sources to $6,636. Nineteen sixty-seven showed a smaller operating loss of $5,786. Again, outside income softened the effect so the company showed a small net profit of $910.

Plaintiff succeeded to her husband’s position on the corporate board in 1966 and the board was increased by one member sometime in 1966 or 1967 to provide an additional director friendly to plaintiff’s interests. From then until trial, the board consisted of (1) Ralph Fix, (2) plaintiff, (3) someone friendly to plaintiff’s interests, (4) Thomas J. McGarry, and either (5) Donald Fix or F. Joseph Weidinger who alternated at the discretion of Ralph.

In 1968 the company increased its sales showing a profit on operations of $11,258 and net profits of $18,679. However, a serious loss occurred in 1969 with an operating loss of $27,050 and a net loss of $17,191. The annual report and financial statement showed gross sales down significantly and a decline in both current ratio and net worth. Signs of internal dissension among the shareholders regarding management control of the corporation surfaced that year. Plaintiff and the Wiecks were dissatisfied with the manner in which the three controlling officers were operating the corporation and personal conflicts developed between the Wiecks and Thomas J. McGarry, voting trustee under the trust agreement. There is evidence that the company’s officers considered various answers to the internal dissension problem, including purchase of all shares held by plaintiff and the Wiecks, the sale of the business as a going operation and liquidation. No solution was reached.

Notwithstanding the losses and internal conflicts, the employment contracts of Donald Fix and F. Joseph Weidinger were modified to provide cost of living salary increases and bonus arrangements based on a stated percentage of annual net profits.

Fix Material Company, Inc., suffered a second serious loss on operations in 1970 in the amount of $29,465. The loss was due primarily to a labor strike against the company’s suppliers, which initially reduced operations and finally caused á three-week shutdown during the peak-production period. Sales fell well below levels of prior years. Cushioning these losses, management, with the agreement of the participating banks, decided to sell all nonessential assets to meet working capital requirements. On authorization from the shareholders, some assets were sold and the company was able to show a net profit of $11,800 that year.

Nineteen seventy-one was a profitable year with operating profits of $13,687. Gross sales were up significantly and additional income from the sale of nonessential assets pushed net profits to $33,955. Dissension among the shareholders increased in 1971 when the officers were paid a bonus on the net-profit figure leading to a derivative action, not at issue on this appeal, challenging the bonus payment. In addition, plaintiff and her representative, Carl R. Moehlenhoff, specifically dissented from a board of director’s decision to lease additional trucks on the ground that plaintiff was receiving no return on her investment in the corporation.

The company experienced a disastrous loss in 1972 of $115,076 resulting from a long labor strike, inclement weather and a general depressed condition in the construction industry. In addition, the company lost sales from an abortive attempt to raise prices in conformance with an alleged clandestine price-fixing agreement which management mistakenly regarded as industry wide.

During the ten-year period under discussion, no cash dividends were declared by the corporation. While plaintiff’s husband Joseph E. Fix was alive and an active officer of the corporation, he received his salary but following his death, plaintiff received no return or benefit from her investment in any form. She did not actively participate in the operation of the corporation at any time beyond her role as a director. The record does not disclose the payment of any director’s fees.

This action, instituted in July of 1972, proceeded to trial in November, 1973. At the time of trial, there were 21,208 shares of common stock issued and outstanding of which plaintiff held 41% or 8,610 shares and Ralph T. Fix 48% or 10,180 shares. Donald Fix, Sylvester Wieck and Dorothy Wieck were among those holding small numbers of shares.

Section 351.485(1), RSMo.1969, of our Business Corporation Act was taken haec verba from the Illinois Business Corporation Act, S.H.A. Ch. 32, § 157.86 (1933), as amended, S.H.A. Ch. 32, § 157.86 (Supp. 1971), which in turn was the statutory basis for the ABA-ALI Model Business Corporation Act. Flarsheim v. Twenty-Five Thirty-Two Broadway Corporation, 432 S.W.2d 245, 252[7] (Mo.1968). Prior to the enactment of this provision our courts lacked the authority under their general equity powers to dissolve a corporation and distribute its assets, Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944, 950[3] (1950); Ashton v. Penfield, 233 Mo. 391, 135 S.W. 938, 948[9] (1911). Now, however, judicial liquidation is permitted. Jesser v. Mayfair Hotel, Inc., 316 S.W.2d 465, 473[9] (Mo.1958). The statute contemplates that the court of equity shall take jurisdiction of the cause, once the requisite showing is made, and bring its discretion to bear in granting or refusing equitable relief. Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944[3, 4] (1950); Kirtz v. Grossman, 463 S.W.2d 541, 547[7] (Mo.App.1971).

The complaining shareholder has the burden of proof to establish the requisite jurisdictional facts and the equitable grounds for dissolution. See Baker v. Commercial Body Builders, Inc., 264 Or. 614, 507 P.2d 387 (1973) for a similar interpretation of a nearly identical statute. The court is not limited to the remedy of dissolution but may consider other appropriate alternative equitable relief. Handlan, supra at 952; Kirtz, supra at 547.

Plaintiff seeks liquidation of defendant-corporation for alleged oppressive and illegal conduct by those in control. Considering the meaning of the statutory term “oppressive,” we note conduct need not be illegal or fraudulent to be oppressive. The Illinois courts have made it clear, when construing the Illinois Statute (the model for § 351.485), that “oppression” is, in and of itself, an independent ground for relief not requiring a showing of fraud, illegality, mismanagement, wasting of assets, nor deadlock, though these factors are frequently present. Gidwitz v. Lanzit Corrugated Box Co., 20 Ill.2d 208, 170 N.E.2d 131, 135[1] (1960); Central Standard Life Insurance Co. v. Davis, 10 Ill.2d 566, 141 N.E.2d 45, 50[3] (1957); Compton v. Harding Realty Co., 6 Ill.App.3d 488, 285 N.E.2d 574, 581[11] (1972). We are persuaded this interpretation is appropriate here.

It has often been stated that oppression suggests “burdensome, harsh and wrongful conduct,” “a lack of probity and fair dealing in the affairs of a company to the prejudice of some of its members,” or “a visible departure from the standards of fair dealing, and a violation of fair play on which every shareholder who entrusts his money to a company is entitled to rely.” See White v. Perkins, 213 Va. 129, 189 S.E.2d 315 (1972) in which the court adopted the foregoing definition from the cited decisions. Such definitions are suggested perimeters of the broad term rather than narrow definitions which would tend to rob the term of its useful flexibility. As we read the statute, it is intended the courts will proceed on a case-by-case basis. A helpful approach is that taken by the court in Kirtz v. Grossman, 463 S.W.2d 541 (Mo.App.1971) in which alleged “oppressive” conduct by those in control of a closely-held corporation was analyzed in terms of the “fiduciary duties” owed by majority shareholders to the minority.

In the instant case Ralph T. Fix, Donald Fix, F. Joseph Weidinger and Thomas J. McGarry, acting in concert, control a majority of the outstanding stock, though no single shareholder owns 51%. Because this control carries the power to destroy or impair the interests of minority owners, the law imposes equitable limitations on the rights of dominant shareholders to act in their own self-interest. Shareholders in control are under a fiduciary duty to refrain from using their control to obtain a profit for themselves at the injury or expense of the minority, or to produce corporate action of any type that is designed to operate unfairly to the minority. Kirtz v. Grossman, supra at 544[4]; see Long v. Norwood Hills Corporation, 380 S.W.2d 451, 476 (Mo.App.1964). Though controlling shareholders are not fiduciaries in the strict sense, the general concepts of fiduciary law are useful in measuring conduct by those in control that entitles the minority to relief, particularly in the context of a closely-held corporation. We do not mean that a single act in breach of such duty would be sufficient “oppressive” conduct to authorize dissolution of a corporation (unless extremely serious), absent evidence of irreparable injury, imminent danger of loss or miscarriage of justice. Jesser v. Mayfair Hotel, 316 S.W.2d 465, 473[9] (Mo.1958). We do not foreclose the possibility that the “cumulative effects . of many acts and incidents” of misconduct might constitute sufficient evidence of oppressive conduct to compel liquidation without a showing of inevitable ruin. Central Standard Life Insurance Co. v. David, supra at 50.

Plaintiff contends those in control of defendant-company have acted oppressively in refusing to attend the special shareholders’ meetings called by plaintiff, voting themselves twenty-year employment contracts and in concealing corporate financial information from her. The first allegation concerns two special shareholders’ meetings called by plaintiff in midsummer 1972. The meetings were called when the company was suffering serious losses from strikes, inclement weather and the depressed condition of the construction industry generally. Notices were sent to all owners but none of the controlling shareholders attended either meeting.

It is plaintiffs argument that failure to attend these meetings constitutes “oppressive” conduct within the meaning of § 351.485. She urges that in light of the serious losses suffered by the company, good faith and fair dealing required the controlling persons to account for the operations of the business to the shareholders at these special meetings. While the law places equitable limits on the actions of controlling shareholders which might operate to the detriment of the minority, there is no affirmative duty compelling shareholders to attend or participate in shareholders’ meetings. Hall v. Hall, 506 S.W.2d 42, 45[7, 8] (Mo.App.1974). Under these circumstances, failure of the controlling shareholders to attend the special shareholders’ meetings is not evidence of “oppressive” conduct. Plaintiff has shown no injury to herself. The record demonstrates that plaintiff received interim profit-loss statements in August and again in October of 1972 providing some information on the operations of the company. In addition, the annual shareholder’s meeting was held three months after the special meetings called by plaintiff and was attended by the controlling shareholders.

Plaintiff’s second allegation concerns the twenty-year employment contracts of Ralph and Donald Fix and F. Joseph Weidinger. Plaintiff admits approving the contracts when originally executed; however, she now claims that the contracts are oppressive as they are incongruous with fair dealing in a family corporation. She does not contend the compensation paid was excessive but complains of the contract’s duration.

Long-term employment contracts for corporate officers present problems, running afoul the general maxim that management and control of the corporation is vested in the board of directors. See Streett v. Laclede-Christy Co., 409 S.W.2d 691 (Mo.1966). Such contracts also seem at variance with the spirit of § 351.485, RSMo. 1969, authorizing removal of corporate officers and employees at the pleasure of the board. Notwithstanding such problems, the twenty-year employment contracts for the three managing officers does not per se constitute oppressive conduct. However, the duration of the contracts coupled with the company losses and the sale of corporate assets makes the salary increases voted to those in control increasingly suspect.

The exhibits disclose sale of corporate assets by years as follows: 1970, 7.65%; 1971 (the year of the officers’ bonuses), 4.31%; 1972, 1%. Twelve percent of all assets were sold during this three-year period. In the opinion of the president of the Charter Bank of Jennings, Missouri, the initiating bank in defendant’s line of credit, the sale of defendant’s assets would yield little more than the outstanding bank loans. While there is contrary testimony, it is clear that further sale of corporate assets could well jeopardize plaintiff’s position, calling for immediate superintending control by the court in a subsequent action. The net worth of the company in 1963 was approximately $353,087 and the stock, $17.07 a share. The book value of plaintiff’s shares was $143,973 in that year. By 1972 the company’s net worth had dropped to $328,-967, a decline of $24,120; the value per share sagged to $15.51; the book value of plaintiff’s shares was only $133,541, reflecting a loss of $13,232. The company’s unhealthy financial condition and its loss of net worth is markedly increased when measured against the inflationary trend during the ten years involved. As shown by Plaintiff’s Exhibit R-2, the company is being pressured to sell further assets, in particular its real estate holdings on U.S. Highway 270. If this occurs and the money dissipated consistent with prior practices of those in control, plaintiff’s holdings will be even more seriously jeopardized. In such event we foresee the company immediately exposed to a suit for remedial action and superintending control by the court, notwithstanding the fact that the shareholders authorized the sale of all “nonbusiness assets” at the 1970 shareholders’ meeting. We are not advised of the current status of the corporate assets but all parties may be advised by this decision concerning the future course of the corporation and the activities of its managing officers.

Plaintiff’s third allegation concerns her charge that the persons in control concealed financial information from plaintiff and her representative on the board, Carl R. Moehlenhoff. Her contentions in this regard are somewhat obscure, directed not at concealment but rather at the form in which the financial information was presented and subtle interference with her right to free access of the records. The record shows that plaintiff and Mr. Moeh-lenhoff received the annual audit reports and were given access to the corporation’s books and records on demand. Prior to the institution of the present action interim profit-loss statements were prepared for dissemination at directors’ meetings. Sometime after the present action was instituted unaudited interim statements were no longer provided plaintiff. Financial information offered her was limited to audited statements and to the books and records. At the 1973 annual shareholders’ meeting, shortly before the trial commenced, plaintiff, through her attorney, submitted a list of questions to the officers requesting certain financial information which they took under advisement, agreeing to schedule another meeting for discussion of the questions. Plaintiff was offered access to the corporate books and her representative Carl R. Moehlenhoff inspected them on one occasion.

The primary complaint appears to be that management should have provided her with monthly profit and loss statements as she cannot adequately gain such information from an inspection of the books. Additionally, management should utilize more sophisticated accounting methods, i. e. cost accounting records. Plaintiff has cited no authority supporting her contentions and we have found none through our research. The record demonstrates that the controlling shareholders have satisfied their legal obligation to plaintiff under § 351.215, RSMo.1969, by providing access to the corporate records and by providing annual audit reports and financial statements. The officers were seemingly within their authority, after the institution of this action, in limiting plaintiff’s access to any internal financial reports prepared for management use. State ex. rel. Jones v. Ralston Purina Co., 358 S.W.2d 772, 778[3] (Mo.1962).

Plaintiff next contends that the controlling officers engaged in illegal price fixing contrary to § 416.040, RSMo.1969, the statute in force in 1972. In July of 1972, defendant Fix Material Company, Inc., increased its price an average of $.75 per unit. Management had received information from various customers and salesmen that ready-mix companies throughout the industry were planning to raise their prices and three of defendant’s competitors informed the company by letter that they intended to raise their price per unit by $.75 on June 1,1972. At the 1972 annual shareholders’ meeting Donald Fix made the following remarks:

“Mr. Chairman, there’s one item that hasn’t been brought up either this evening or at our informal get-togethers that hurt our yardage in July. It was unofficially and without collusion, I don’t know how you say, spread around or decided upon that an increase would take place in, the first of July, in ready-mix concrete. We so increased our prices on a number of jobs and in some of our bid work only to find that it wasn’t unanimous. Those who played their neat little trick ended up with the jobs and we ended up with nothing.”

Plaintiff argues that these remarks with other pertinent evidence constitutes proof of illegal and oppressive conduct in the form of price fixing contrary to the statute. Further, the fact that defendant raised its prices at the same rate and at the same time as some competitors when the market was depressed is evidence of conscious parallelism of action and therefore an illegal arrangement, contract, agreement, combination or understanding under § 416.040.

To make a submissible case under the statute plaintiff must show that the controlling shareholders entered into an agreement, contract, combination or understanding with one or more persons and that this combination tends to lessen competition. Missouri Portland Cement Co. v. Denny Concrete Co., Inc., 499 S.W.2d 432, 436[1, 2] (Mo.1973); State v. Miles Laboratories, 282 S.W.2d 564, 568[3] (Mo. banc 1955). Plaintiff has not sustained her burden. That defendant raised prices the same as some of its competitors is not enough, absent additional facts showing that the decisions of defendant and its competitors were somehow interdependent. See Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541-542, 74 S.Ct. 257, 98 L.Ed. 273 (1954).

As an independent basis for liquidation, irrespective of the alleged illegal and oppressive acts, plaintiff argues that defendant Fix Material Company, Inc., has failed to fulfill its corporate purpose of operating at a profit for its shareholders. In support of her contention, plaintiff cites various cases from other jurisdictions where corporate dissolution has been ordered on this basis under general equity powers. Such a claim is not cognizable in Missouri. As discussed previously, prior to 1943 our courts had no jurisdiction to dissolve a corporation and distribute its assets. Handlan v. Handlan, supra at 951. The Missouri Supreme Court in Milgram v. Jiffy Equipment Co., 362 Mo. 1194, 247 S.W.2d 668, 673[6] (1952), declared that the statute alone established a basis for relief. By advancing “failure of the company to fulfill its corporate purpose” as a basis for liquidation independent of the statute, plaintiff presents no claim upon which relief can be granted. This is not to say that continued corporate existence without a reasonable prospect for profitable operation might not be a circumstance of demonstrating “oppression.” See Polikoff v. Dole & Clark Bldg. Corp., 37 Ill.App.2d 29,184 N.E.2d 792 (1962).

We conclude that while those in control of defendant Fix Material Company, Inc., were at times antagonistic, plaintiff has failed to sustain her burden of proof under § 351.485. The evidence of oppressive and illegal conduct on the part of the controlling shareholder, though substantial, is insufficient to warrant corporate dissolution.

This case points up the position of frustration and corporate impotence which minority shareholders sometime find themselves, particularly in closely-held corporations. But we emphasize it is not the function of the court in equity to lightly disregard the plight of those so situate. Here the combination of long-term management contracts to controlling shareholders, heavy corporate losses coupled with sale of corporate assets and salary increases to those in charge, comes narrowly close to a level of oppressive or illegal conduct within the meaning of the statute. If the conditions continue in the direction described, a future action by those aggrieved might well produce a different result. The judgment is affirmed.

WEIER, P. J., and DOWD, J., concur.

      . Pertinent portions of § 351.485 are as follows:
      “1. Courts of equity shall have full power to liquidate the assets and business of a corporation:
      (1) Upon the suit of a shareholder when it is made to appear: .
      (b) That the acts of the directors or those in control of the corporation are illegal, oppressive, or fraudulent; or
      (c) That the corporate assets are being misapplied or wasted. . .

      . Some ambiguity appears as to the standard employed by the trial court in passing on defendant’s motion to dismiss. While it is indicated that the court weighed the evidence and found the decisive issues against plaintiff, there are also indications the court treated the motion as one for directed verdict. Though plaintiff discusses the point in her argument portion of her brief, she cannot claim prejudice if the court used the more liberal standard in her favor. Further, the point is not properly raised for review.

      . The courts in Missouri and other jurisdictions with similar dissolution provisions have recognized a number of equitable remedies depending on the facts of the case and the nature of the problem involved. Among those are:
      (a) Entry of an order requiring dissolution of the corporation at a specified future date, to become effective only in the event that the stockholders fail to resolve their differences prior to that date, Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944, 951[4] (1950);
      (b) Appointment of a receiver, not for the purposes of dissolution, but to continue the operation of the corporation for the benefit of all the stockholders, both majority and minority, until differences are resolved or “oppressive” conduct ceases, Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944, 952[5] (1950);
      (c) Appointment of a “special fiscal agent” to report to the court relating to the continued operation of the corporation, as a protection to its minority stockholders, and the retention of jurisdiction of the case by the court for that purpose, Roach v. Margulies, 42 N.J.Super. 243, 126 A.2d 45, 46[2] (1956);
      (d) Retention of jurisdiction of the case by the court for the protection of the minority stockholders without appointment of a receiver or “special fiscal agent,” Patton v. Nicholas, 154 Tex. 385, 279 S.W.2d 848, 857[6] (1955);
      (e) Ordering of an accounting by the majority in control of the corporation for funds alleged to have been misappropriated, Horn-stein, A Remedy for Corporate Abuse, 40 Col.L.Rev. 220, at 236 (1940);
      (f) Issuance of an injunction to prohibit continuing acts of “oppressive” conduct and which may include the reduction of salaries or bonus payments found to be unjustified or excessive, see Hornstein, A Remedy for Corporate Abuse, 40 Col.L.Rev. 220, at 236 (1940);
      (g) Ordering of affirmative relief by the required declaration of a dividend or a reduction and distribution of capital, Patton v. Nicholas, 154 Tex. 385, 279 S.W.2d 848, 857[6] (1955); see Kirtz v. Grossman, 463 S.W.2d 541, 545[8] (Mo.App.1971);
      (h) Ordering of affirmative relief by the entry of an order requiring the corporation or a majority of its stockholders to purchase the stock of the minority stockholders at a price to be determined according to a specified formula or at a price determined by the court to be a fair and reasonable price, see Kirtz v. Grossman, 463 S.W.2d 541, 545[8] (Mo.App.1971);
      (i) Ordering of affirmative relief by the entry of an order permitting minority stockholders to purchase additional stock under conditions specified by the court, Browning v. C. & C. Plywood Corp., 248 Or. 574, 434 P.2d 339, 343[3] (1967);
      (j) Award of damages to minority stockholders as compensation for any injury suffered by them as the result of “oppressive” conduct by the majority in control of the corporation, Browning v. C. & C. Plywood Corp., 248 Or. 574, 434 P.2d 339, 343[3] (1967); see Campbell v. Ford Industries, Inc., 266 Or. 479, 513 P.2d 1153, 1156 (Banc 1973).
      See Baker v. Commercial Body Builders, Inc., 264 Or. 614, 507 P.2d 387 (Or.1973) and the cases cited therein; cf. White v. Perkins, 213 Va. 129, 189 S.E.2d 315 (1972).

      . Scottish Co-op. Wholesale Soc'y, Ltd. v. Meyer, [1958] 3 All E.R. 66, 71, 86 (H.L.) construing a similar provision under The [British] Company Act of 1948, 11 & 12 Geo. 6, c. 38, § 210.

      . Edler v. Edler & Watson, Ltd., [1952] Sess. Cas. 49, 55 also construing the English Company Act.

      . The Missouri Anti-trust Law was substantially revamped in 1974 and may be found at §§ 416.011 to 416.161, Laws 1974.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Rawleigh TASH, Appellant.
    No. 10114.
    Missouri Court of Appeals, Springfield District.
    June 11, 1976.
    Rehearing Denied June 28, 1976.

      John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Ralph E. Baird, Joplin, for appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Defendant was jury-convicted and sentenced to two years’ imprisonment for stealing a bluetick coon dog, the property of Larry Wilson.

In 1972, and around June 20 or 21, defendant and his two sons, Arley and Byron, were in and near Horton, Missouri inquiring of several people about buying hunting dogs. Defendant and his two “grown boys” were traveling in a red Ford automobile bearing Kansas license plates. Chester Shields sold the trio a dog for $125 and Richard Pryor sold them a dog on a trial basis which they returned 4 or 5 days later. The three attempted to purchase a red hound from Pryor but he refused to sell this dog. Defendant and his sons also visited the Diehl and Larry Wilson farms ostensibly to view dogs and attempt purchases. All the persons called on by defendant and his boys lived in or within a few miles of Horton.

On July 3 Pryor, upon returning from Kansas City with his family, discovered his red hound missing. This was the dog he had refused to sell to defendant and his sons. On the same day Wilson found that his bluetick was gone. On July 5 Pryor, Wilson and the latter’s father went to the Columbus, Kansas area looking for defendant and the boys. Defendant’s home was located but neither he nor the boys were there. Acting on information obtained while trying to locate defendant, Larry Wilson and his father traveled to Sesser, Illinois on July 8 to the home of William Art Loman, a dog dealer who bought and sold coonhounds and beagles. Loman had previously purchased dogs from defendant and his sons.

The night before Larry Wilson and his father arrived in Sesser, defendant and his two sons appeared at Loman’s home in the red Ford accompanied by 4 dogs they wanted to sell to Loman. One of the four was Wilson’s missing bluetick coon dog; another was Pryor’s missing red hound. Defendant and the boys spent the night at Loman’s house.

The next morning, when Wilson and his father arrived at Loman’s house, the red Ford with Kansas tags was parked at the residence. Wilson and his father then found Chief of Police Bowers, who accompanied them back to Loman’s house. The Ford was still there. Wilson’s father knocked on the front door and Loman responded. When Loman went to answer the knock on the door, defendant and his two sons were inside the house. After learning the reason for the call, Loman took Wilson, his father and the police officer to the rear of his house. The dogs belonging to Wilson and Pryor were gone. After Wilson et alii departed, Loman reentered his house and found defendant and the sons were missing.

About an hour later Wilson and his father returned to the Loman home. They arrived at or near the time defendant’s two sons were seen emerging from a nearby cornfield and were arrested. Wilson and his father followed shoe prints and dog tracks leading into the cornfield and later came upon Pryor’s dog tied to a tree with bailing wire. Wilson’s bluetick coon dog was found injured in a ditch; it had a large gash on its head and an injured eye. Wilson took his dog to a veterinarian and returned Pryor’s dog to him in Missouri. When Wilson later returned to Sesser, Illinois to get his dog, he learned that defendant had also been arrested and jailed.

In his appeal here, defendant raises some of the same points relied on by his son Arley who was separately tried and convicted of stealing the Wilson dog. That conviction was affirmed in an excellent opinion of the Kansas City District of this Court. State v. Tash, 528 S.W.2d 775 (Mo.App.1975). Borrowing liberally from Judge Dixon’s opinion, we gratefully acknowledge his good and helpful work with quotation marks.

Defendant’s second point is rather prolix but, in substance, challenges the sufficiency of the evidence to sustain the conviction. The facts previously recited (which are almost identical to those in the reported case) “and the inferences favorable to the verdict, are sufficient to support the conviction of the defendant for the stealing of the Wilson dog.” Ibid. 779[1],

Points 1 and 4 in defendant’s brief complain that the trial court erred in denying defendant’s application for a protective order against testimony regarding the theft of Pryor’s dog and by admitting such evidence at trial over objection “on the grounds that it was evidence of another crime and inadmissible. There was evidence in this record that the Pryor and Wilson farms were close by. The evidence also demonstrated that the dogs disappeared from both households on the same day. The dogs were found together and had been in the recent possession of the Tashes. The State’s contention is that this evidence is admissible under the common scheme or plan exception to the inadmissibility of such evidence in ordinary circumstances. Relying upon State v. Smith, 431 S.W.2d 74 (Mo.1968), and State v. Mitchell, 491 S.W.2d 292 (Mo. banc 1973), the State insists that the evidence in this case falls within the exception of common scheme or design. Examining all the facts and circumstances in this case and considering the entire record, it would seem that the State’s contention is correct and that this case is one in which evidence of the theft of the other dog becomes admissible to show common scheme and design. The cases cited by the defendant, typified by State v. Mathis, 375 S.W.2d 196 (Mo.1964), can be distinguished by the absence of any facts in those cases which tended to connect or interrelate the offenses themselves rather than the defendant’s connection with the offense. As noted above, there are a variety of facts here which tend to show a connection between the offenses and to demonstrate that the offenses were, in fact, part of a common scheme or design. The further elaboration of this point by defendant’s assertion that the prosecutor improperly argued this evidence fails upon a finding that it was properly admitted in evidence.” Ibid. 780[7, 8],

The final point for our consideration is defendant’s point 3. It is: “The Court erred in giving Instructions 4 [MAI-CR 2.04], 5 [MAI-CR 3.06] and 6 [MAI-CR 2.10] over the objection of appellant for the reason that there is no evidence tending to show the appellant knowingly and with common purpose acted together with other persons with the common purpose of committing the offense alleged in the information, or that appellant knowingly and intentionally aided or encouraged another in committing it.” We do not consider the point as it relates to instruction 5 for two reasons. First, instruction 5 was given at defendant’s request. Second, the point, as it relates to instruction 5, is not preserved for appellate review because defendant’s complaint thereof was not presented to the trial court in defendant’s motion for a new trial. State v. Grebe, 512 S.W.2d 409, 410[1] (Mo.App.1974).

Instruction 4 “is a verdict directing instruction on stealing in [MAI-CR 2.04] form but requiring that the jury find that defendant acted in concert with others. On the first ground asserted, that there is no evidence of the defendant having acted in concert with others, the earlier recitation of the facts the jury could have found demonstrates the frivolity of the argument. There is again a sufficient circumstantial basis for the jury to infer the intent of the defendant to engage in a common scheme or plan to steal the Wilson and Pryor dogs.” State v. Tash, supra, 528 S.W.2d at 783[29],

“Instruction [6] . . . is a verbatim copy of MAI-CR 2.10 and was appropriate under the same analysis and authority as has been made as to instruction No. [4].” Ibid. 784.

The judgment is affirmed.

Addendum

The transcript on appeal does not show that defendant asked for or received from the trial court additional time to file his motion for a new trial and that the motion was filed 13 days after verdict. Based on this, the State moved for dismissal of appeal. Criminal Rule 27.20(a), V.A.M.R. Albeit, according to the transcript, the motion was not timely filed, we could not dismiss the appeal because of our obligations under Criminal Rule 28.02, V.A.M.R. In any event, we have been provided with a certified copy of the trial court’s docket which shows that defendant was given 20 days to file his motion for a new trial and that the motion was timely filed. Therefore, the State’s motion is overruled.

All concur.


author: HOGAN, Judge.

text:
    SPRINGFIELD GENERAL OSTEOPATHIC HOSPITAL, Respondent, v. INDUSTRIAL COMMISSION of Missouri and Division of Employment Security, Appellants.
    Nos. 9756, 9757.
    Missouri Court of Appeals, Springfield District.
    June 15, 1976.

      Terry C. Allen, Jefferson City, for Div. of Employment Security.
    Charles B. Fain, Jefferson City, for Ind. Commission of Missouri.
    Donald W. Jones, Christopher J. Stark, Prewitt, Jones & Karchmer, Springfield, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

This is an appeal by the Industrial Commission of Missouri and the Division of Employment Security from a decision of the Circuit Court of Greene County reversing in part the decision of the Commission in three unemployment compensation cases. The essential question presented is whether or not the Circuit Court of Greene County had jurisdiction to determine the chargeability of benefits to which three of the hospital’s former employees were entitled. The Commission insists the court had no such authority; the hospital as vigorously contends that it did. A construction of § 288.210, RSMo 1969, is required.

Deborah White filed a claim for unemployment compensation benefits on June 6, 1973. The hospital was notified and protested informally by letter. A deputy determined that White voluntarily left her work without good cause attributable to her work or her employer, but further determined that she had terminated her initial disqualification by earning wages equal to ten times her weekly benefit since the date she quit. § 288.050(1)(1). The hospital appealed this determination, contending that White was not eligible because she had not actively and earnestly sought work as required by § 288.040(1)(2); alternatively, the hospital maintained that it could in no event be charged with any benefits due White because it was an employer directly involved in the initial disqualifying act. § 288.100(l)(4)(a). The r'eferée found against the hospital on the issue of White’s availability for work, but made no specific ruling on benefit charges or the hospital’s exemption. At the hearing before the appeals tribunal, the referee advised counsel for the hospital that the issue of ehargeability “cannot be raised in this hearing because [the benefits due White] have not yet been charged against your client . there is no decision could be made and no appeal could be filed until they have been charged.” Counsel answered that he recognized “that might be a possibility” but made it clear he wished to raise the charge-ability issue “as early as possible”. The hospital subsequently applied for review by the Industrial Commission; its application was denied.

Mary Hasler, another of the hospital’s former employees, filed her claim for benefits May 29, 1973. The hospital protested this claim. A deputy determined that Has-ler left her work voluntarily without good cause attributable to her work or to her employer, but further found that her initial disqualification was terminated because her first claim week began more than one year after the date of the disqualifying act. § 288.050(3). The hospital appealed the deputy’s determination on the ground that Hasler had not been available for work as required by § 288.040(1)(2) and on other grounds not material here. The referee determined, among other things, (a) that Hasler left her work voluntarily without good cause attributable to her work or to her employer, and (b) that she quit her work at the hospital for the purpose of accepting a more remunerative job, that she did accept the more remunerative job and earned some wages therein. The referee also found that any disqualification was terminated because Hasler’s first claim week began more than one year after the initial disqualifying act, and further found that her initial disqualification (quitting without cause) was terminated because she had earned wages equal to ten times her weekly benefit amount. The hospital requested review by the Commission, asserting that the referee should have specifically found that any benefits due Hasler were not chargeable to the hospital by reason of the noncharge provisions of § 288.-10Q(l)(4)(a) and (b). This application for review was also denied.

Elsie Satterfield, also a former hospital employee, filed her claim for benefits on June 19, 1973. The hospital protested this claim by letter, attaching a note in which Satterfield advised the hospital that she had “another job with lot more pay, so this is my notice”. A deputy determined that any disqualification had been terminated by lapse of time. § 288.050(3). The hospital appealed on the ground that the claimant had not been available for work, and upon the further ground that it could in no event be held chargeable with any benefits to which Satterfield might be entitled. The appeals tribunal held that any disqualification had been terminated because the first benefit week began more than one year after the otherwise disqualifying act, but remanded the claim to the deputy to determine the claimant’s eligibility with respect to vacation pay she had received. The referee also specifically held in this case that the issue of benefit charges was not properly before him. A petition for review filed by the hospital was denied by the Commission.

All three decisions were appealed to the Circuit Court of Greene County. The petitions for review are quite lengthy, but in each case the hospital sought a declaration that none of the claimants was eligible for benefits, and further prayed a determination that in any event the noncharging provisions of § 288.100(l)(4)(a) and (b) relieved the hospital of any liability. The Commission’s answer is likewise wordy and imprecise, but given favorable intendment, it challenges the court’s jurisdiction to determine the applicability of the exemptive sections quoted because the proceeding on appeal is a matter “not involving a claimant” within the meaning of § 288.210, RSMo 1969. An additional issue tendered by the pleadings is whether or not the hospital as a reimbursing employer is entitled to the benefit of the noncharging provisions of § 288-100(l)(4)(a) and (b). We shall discuss this last issue briefly, but we have concluded that it is unnecessary to resolve it and that it probably would be imprudent to attempt to do so.

All three appeals were consolidated in the circuit court. That court reviewed the record and concluded: 1) that there was substantial evidence on the whole record to support the Commission’s finding that all three claimants were eligible for benefits; 2) that the hospital’s claim of exemption under the noncharging subsections of § 288.100 was properly and timely raised and that the Commission erred as a matter of law in not holding the hospital exempt under those provisions, and 3) that the hospital was not deprived of the benefits of § 288.100(l)(4)(a) and (b) by electing to become a reimbursing employer as permitted by § 288.090(3)(l)(a).

As indicated, the key and dispositive question presented is whether the trial court had jurisdiction to adjudicate the chargeability of the benefits to which the three claimants were entitled. The issue of the claimants’ eligibility has not been briefed nor argued and must be considered abandoned. La Grange Reorg. School Dist. No. R-VI v. Smith, 312 S.W.2d 135, 136-137[1] (Mo.1958).

Section 288.210, RSMo 1969, governs appeals to the courts in employment security cases, and reads in pertinent part as follows (emphasis ours):

“Within ten days after a decision of the commission has become final, the director or any other party aggrieved thereby may secure judicial review ... by commencing an action in the circuit court . of the county of claimant’s residence or, in respect to those matters not involving a claimant . . . the circuit court of Cole County Notwithstanding the foregoing, where judicial review is sought in respect to a decision involving more than one claimant, the action may be commenced in the circuit court ... of the county in which the interested employer has a place of business in which one or more of the claimants were employed.”

Section 288.210, RSMo 1969, was enacted by the General Assembly in 1951 as part of a general revision of the Employment Security Law, Laws of Mo.1951, pps. 594-595, and the sentence beginning with the words “notwithstanding the foregoing” was added in 1961. Laws of Mo.1961, pps. 435-436. This statute provides a complete and exclusive procedure for obtaining judicial review of decisions of the Commission in the courts, and as the Commission contends, failure to follow the procedure specified would be fatal to the hospital’s appeal. Hansen v. Division of Employment Security, 520 S.W.2d 150, 152[4] (Mo.App.1975); Duzer v. Industrial Commission, 402 S.W.2d 616, 618[1][2] (Mo.App.1966). However, the merits of these appeals do not depend upon the hospital’s compliance, or lack of compliance, with the procedural requirements of § 288.210, RSMo 1969. The rationale of the controlling and persuasive precedents varies a good deal, but we are left in no doubt that the quoted part of § 288.210, RSMo 1969, vests exclusive jurisdiction to determine “matters not involving a claimant” in the Circuit Court of Cole County. State ex rel. State Tax Commission v. Luten, 459 S.W.2d 375, 378[3, 4] (Mo. banc 1970); Warnecke v. State Tax Commission, 340 S.W.2d 615, 618-619[2][3][4] (Mo.1960). Therefore, if the issue of chargeability is a matter “not involving a claimant”, and provided the phrase “in respect to those matters not involving a claimant” as applied to these multiple claims was not nullified by addition of the sentence beginning “notwithstanding the foregoing” by Laws of Mo.1961, at 435-436, the decision of the trial court exempting the hospital is eoram non judice.

In construing § 288.210, RSMo 1969, we bear several general principles in mind. We must attempt to ascertain the intent of the General Assembly in enacting the statute; we do so by considering the whole Act and its legislative history. We look to the circumstances and usages of the time; we seek to promote the purposes and objects of the statute and to avoid any strained or absurd meaning. St. Louis Southwestern Ry. Co. v. Loeb, 318 S.W.2d 246, 252[1] (Mo. banc 1958); In re Dugan, 309 S.W.2d 137, 143[7-12] (Mo.App.1957). The statutory language we have to interpret has been part of our law without significant amendment for 35 years, and therefore a cardinal hypothesis of our opinion is that we must determine the intent of the enacting legislature, not that of a later or the current one. As Professor Dickerson has put the matter: We further bear in mind that if ambiguity exists, the interpretation of the ambiguous provision by administrative officials is entitled to serious consideration in determining the meaning thereof. State ex inf. Anderson v. St. Louis County, 421 S.W.2d 249, 254[4] (Mo. banc 1967); In re Graves, 325 Mo. 888, 899-900, 30 S.W.2d 149, 153-154[7] (banc 1930); Huntsville Trust Co. v. Noel, 321 Mo. 749, 757, 12 S.W.2d 751, 754[2] (1928); E. Crawford, Statutory Construction § 219 (1940).

“The principle that the court should focus on the date of enactment is supported ... by the general judicial assumption that the orienting force in statutory interpretation is the search for legislative intent, a concept that, despite its limitations, most courts consider basic to the interpretation of statutes. This means the intent, if any, of the enacting legislature, not that of a later or the current one. In the performance of the courts’ cognitive function, legislative intent that does not culminate in an enactment may be generally ignored; so may postenactment changes in the relevant context.
“To read statutes against current, rather than original, usage and environment would subject statutory meanings to uncontrolled and often capricious circumstance.”

The phrase “matters not involving a claimant” first came into our Employment Security Law in 1941. The Act was extensively amended by the 61st General Assembly, and in particular a new section was enacted and codified as § 9432 A, Mo.R.S. 1939. Section 9432 A provided in pertinent part as follows (emphasis added):

“(a) Any determination or decision of the Commission under Section 9428(i)(5), Section 9426 A(d), Section 9427(c)3(E), (h) and (i), Section 9428, Section 9432, and Section 9436(d) and (j) shall, after its rendition, be subject to rehearing and reconsideration upon the application of any interested party . . . and judicial review thereof shall be permitted [only after exhaustion of administrative remedies] ....
(b) Within ten days after the decision of the Commission has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action in the circuit court ... of the county of the claimant’s residence or in respect to those matters not involving a claimant ... the circuit court of Cole County . . . .”

An examination of the sections referred to in paragraph (a) of § 9432 A discloses that:

1. Section 9423(i)(5) authorized the Commission to act as a factfinding tribunal in determining whether or not services performed by a particular person for wages constituted employment subject to the Act;
2. Section 9426 A(d) provided that the Commission might determine, upon application or of its own motion, whether a given employing unit constituted an employer subject to the Act and whether or not services performed in connection with the business of that unit constituted “employment” for purposes of the Act;
3. Section 9247(c)3(E) authorized the Commission to provide a hearing for any employer in respect to his contribution rate and to enter an order fixing [the amount of] such contributions; § 9427(h) authorized the Commission to determine whether a successor employing unit should stand in the same position as its predecessor for purposes of the Act, including the predecessor’s contribution (tax) rate; § 9427(i) permitted the Commission to determine an employer’s contribution rate on the basis of the best information available, if a taxable employer failed to file any report required to determine its contribution rate, or if the information filed was insufficient for the purpose.
4. Section 9428 authorized certain employing units to elect to terminate coverage under the Act, and required the Commission to determine whether or not a given employer was eligible to terminate its liability, and to approve its election to do so;
5. Section 9436(d) established a procedure to obtain reassessment of delinquent or estimated contributions; § 9436(j) set up a procedure to obtain an adjustment or refund of contributions erroneously collected.
6. Section 9432 prescribed a procedure for claiming benefits under the Act.

So, when § 9432 A is considered together with the sections and subsections to which it refers, it becomes apparent that it speaks of two types of decisions or determinations: 1) those concerning the imposition, assessment and collection of the required tax, and 2) those concerning a claimant’s eligibility to receive benefits. Jurisdiction to review those decisions or determinations pertaining to tax liability is conferred upon the Circuit Court of Cole County; appeals involving a claimant’s eligibility for benefits are to be heard in the circuit court of the county of the claimant’s residence.

It must be conceded that some degree of ambiguity inheres in the phrase “matters not involving a claimant”; in a very broad sense, every decision or determination of the Commission “involves” a claimant, or perhaps a large number of claimants. The legislative intent might have been more clearly expressed had the draftsman used the words “matters not involving a claim for benefits”. Nevertheless, whether we regard this possible ambiguity as being a “semantic” or mere “syntactic” ambiguity, see Dickerson, op. cit. at 45^46, resort to the context in which the phrase was originally used makes its meaning clear. Moreover, whatever ambiguity there is in the phrase “matters not involving a claimant” has been resolved by administrative usage and interpretation. The Act itself originally authorized the Commission to administer the law and develop procedural usage. Laws of Mo.1937, p. 574, § 5. In these proceedings the Commission took and now assures us it has always taken the position that decisions concerning the imposition, assessment and collection of the contributions required by the Act must be appealed to the Circuit Court of Cole County. As we have said, the Commission’s interpretation is persuasive, even though it is not controlling. State ex inf. Anderson v. St. Louis County, supra, 421 S.W.2d at 254[4]; Crawford, op. cit. at 394-395. Additionally, we are authorized to consider the effect of a different construction of the statute; the law is said to favor a construction which avoids unreasonable results. Maryland Casualty Co. v. General Electric Co., 418 S.W.2d 115, 118[3] (Mo. banc 1967); Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 848, 253 S.W.2d 832, 835[3] (banc 1953). The Act required and now requires the Commission to maintain its central office in Cole County. § 9425, Mo.R.S.1939; see State ex inf. McKittrick v. Murphy, 347 Mo. 484, 493, 148 S.W.2d 527, 532[14, 15] (banc 1941). Presumably, its records are kept there. The statutes and the Commission’s regulations require the maintenance of separate accounts for each contributing or reimbursing employer, § 288.100(1)(1), and contributions due are assessed to the individual (in some cases joint) account on the basis of information furnished by the employer. To allow an employer’s liability to be determined piecemeal in the various judicial circuits of this state, and to require the Commission to adjust its assessments accordingly would place an intolerable burden on the Commission’s administrative machinery.

There remains for discussion the effect of the addition of the second sentence of § 288.210, RSMo 1969, by Laws of Mo.1961 at 435-436. That sentence, as material, reads (emphasis ours):

“Notwithstanding the foregoing, where judicial review is sought in respect to a decision involving more than one claimant, the action may be commenced in the circuit court ... of the county in which the interested employer has a place of business in which one or more of the claimants were employed.”

The question is whether the addition of this sentence modifies or pro tanto nullifies the jurisdictional limitations imposed by the first sentence of § 288.210, RSMo 1969. We think not. The sentence just quoted refers to multiple claims involving a claimant, not to those which do not involve a claimant. Moreover, we know, and the Commission’s regulations recognize, that many employers have workers who live or reside in several different areas (counties). Special reports are required of these “multi-area” employers. See Regulation 16, effective July 1, 1951. To require each employee of a multi-area employer to file his claim for benefits in the county of his residence would obviously hinder the prompt determination of claims for benefits as far as workers for multi-area employers are concerned; in our opinion, the purpose of the 1961 amendment was simply to allow multi-area employees to obtain review of their claims for benefits in the county where their employer has its office or factory. We therefore believe, and hold, that the Circuit Court of Greene County was without jurisdiction to determine the respondent hospital’s liability for benefit charges, and that that part of its judgment exempting the hospital is void.

In so holding, we realize our conclusion runs counter to current notions that all matters at issue should be decided in one proceeding, if possible, in the interest of “judicial economy”. See, e. g., State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438 (Mo. banc 1975); State ex rel. Farmers Ins. Co., Inc. v. Murphy, 518 S.W.2d 655 (Mo. banc 1975). We realize additionally that it may be burdensome for reimbursing employers, as distinguished from regular contributing employers, to seek review of benefit charges in Cole County. We are not, however, dealing with a procedural rule of court, which may be treated with some elasticity; § 288.210, RSMo 1969, provides an exclusive procedure which must be followed. Hansen v. Division of Employment Security, supra, 520 S.W.2d at 152[3]; Duzer v. Industrial Commission, supra, 402 S.W.2d at 618[2]. Judicial dissatisfaction with a statutory scheme is not a sufficient reason to ignore or distort plain legislative intent; the remedy, if any, lies with the General Assembly and not with the courts.

There is one additional point which we must notice and discuss very briefly, although we do not undertake to decide it. The hospital’s liability for benefit charges, if any, derives from changes in the Employment Security Law required by the 1970 amendments to the Federal Unemployment Tax Act, Pub.L. No. 91-373 (Aug. 10,1970). We shall not consider those changes in detail. It is sufficient for our purposes to note that there are differing opinions whether “contributing”, i. e., nonprofit employers, are entitled to the benefit of ex-emptive provisions comparable to § 288.-100(l)(4)(a) and (b). One jurisdiction has held that allowing nonprofits the benefit of such exemptive provisions would give reimbursing employers a “free ride” at the expense of contributing employers. Mann Home v. Morgan, 529 P.2d 964 (Ore.App.1974). Another has tentatively adopted a different view. Wilmington Medical Center v. Unemployment Ins. Appeal Board, 346 A.2d 181 (Del.Super.1975). At one point we believed it would be necessary to determine whether § 288.100(l)(4)(a) and (b) applied to the hospital, and deferred consideration of this appeal pending resolution of the Delaware case. Further study convinced us that the trial court had no jurisdiction to determine the hospital’s liability for benefit charges, and there is, therefore, no reason to discuss this point further.

To reiterate and summarize our conclusions we find that the claimants’ eligibility is not challenged; the trial court’s finding that all three claimants were eligible is affirmed. We further find that the Circuit Court of Greene County had no jurisdiction to determine the hospital’s liability for benefit charges; that part of the judgment holding that the hospital is exempt and is not chargeable is therefore void and is reversed. When and if the hospital is found liable for reimbursement that decision may be appealed to the Circuit Court of Cole County. The causes are remanded to the Department of Labor and Industrial Relations, which shall proceed in a manner not inconsistent with this opinion. It is so ordered.

All concur.

      . We take note that § 8 of the Omnibus State Reorganization Act, Laws of Mo. 1974, pps. 530, 542, transferred all the powers, duties and functions of the Industrial Commission to a Department of Labor and Industrial Relations, and we note further that the act became effective before the trial of this case was concluded. The trial court allowed the trial to proceed without substitution. Rule 52.13(c), V.A.M.R. We shall, for convenience, refer to the parties as they appeared in the trial court.

      . Which provides, in material part:
      “(1) [A] claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if the deputy finds
      (1) That he has left his work voluntarily without good cause attributable to his work or to his employer.”
      References to statutes are to RSMo Supp. 1973, V.A.M.S., except where otherwise specifically noted.

      .Section 288.100(l)(4)(a), (b), the “noncharge” or exemptive subsections here in issue read:
      “(4)(a) No benefits based on wages paid prior to the date of any act for which a claimant is disqualified under section 288.050 shall be chargeable to any employer directly involved in such disqualifying act.
      (b) In the event the deputy has in due course determined under paragraph (a) of subdivision (1) of subsection 1 of section 288.050 that a claimant quit his work ... for the purpose of accepting a more remunerative job with another employer which he did accept and earn some wages therein no benefits based on wages paid prior to the date of the quit shall be chargeable to the employer the claimant quit.”

      . The Commission denied the hospital’s applications for review, but in such case the decision of the appeals tribunal is deemed to be the decision of the Commission for purposes of review. § 288.200(1), RSMo 1969; Crawford v. Industrial Commission, 482 S.W.2d 739, 741 (Mo.App.1972); LaPlante v. Industrial Commission, 367 S.W.2d 24, 27 (Mo.App.1963).

        . See also Sweitzer v. Industrial Commission, 394 Ill. 141, 68 N.E.2d 290, 294-295[8-17] (1946); Minnesota Valley Canning Co. v. Rehnblom, 242 Iowa 1112, 49 N.W.2d 553, 555[6][7] (1951); Brown v. LTV Aerospace Corp., 394 Mich. 702, 232 N.W.2d 656, 664-666[7][8][9] (1975); Scott v. Nevada Employment Security Department, 70 Nev. 555, 278 P.2d 602, 603-604[2][3] (1954).

      . R. Dickerson, The Interpretation and Application of Statutes 126 (1975).

      . The Employment Security Law, now codified as Chapter 288 of the statutes, was originally enacted in 1937, Laws of Mo.1937, p. 574. It was formerly called the Unemployment Compensation Law and we shall refer to it as the Act.

      .Laws of Mo.1941 at 620-621.

      . Which we are required to notice. § 288.210, RSMo 1969.

      . See L. Hanley, Recent Developments in Employment Security, 28 Mo.B.J. 276 (1972).

      . At this writing, the Delaware controversy is before the Supreme Court of Delaware.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri ex rel. John W. ADAMS, Relator, v. The Honorable William M. CORRIGAN, Judge of the Circuit Court of St. Louis County, Missouri, 7th Division, Respondent.
    No. 37970.
    Missouri Court of Appeals, St. Louis District, Division Four.
    June 15, 1976.

      Thurman, Nixon, Smith, Howald, Weber & Bowles, Joseph P. Cunningham, Hills-boro, for relator.
    Klutho & Cody Attys., Inc., John A. Kilo, St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

Deborah C. Adams, a resident of Jefferson County, filed suit in the Circuit Court of St. Louis County for dissolution of her marriage. Her husband, John W. Adams, a resident of St. Louis County, filed a petition for a writ to prohibit the St. Louis County Circuit Judge before whom the dissolution petition was pending from entertaining jurisdiction, on the ground of improper venue. Our preliminary rule in prohibition issued and on the pleadings, briefs and arguments the cause has been submitted.

Former § 452.040, RSMo 1969, now repealed, provided with respect to cases of divorce and alimony or maintenance that “[t]he proceedings shall be had in the county where the plaintiff resides, and the process may be directed, in the first instance, into any other county in the state where the defendant resides.”

Laws 1973, p. 470 § A repealed the sections relating to divorce, enacted new sections dealing with dissolution of marriage, and in lieu of § 452.040, supra, enacted § 452.300, paragraph 1 of which provides that “The proceedings shall be had in the county where the plaintiff resides, and the proceedings may be directed, in the first instance, in any other county in the state where the defendant resides.” (Our italics.)

The question is whether the italicized language authorizes the filing of a petition for dissolution of marriage in the county where defendant resides but plaintiff does not reside.

The italicized language, considered in conjunction with the first clause of the sentence, simply does not make sense, and cannot possibly be given any precise or intelligible application in the circumstances under which it was intended to operate. No reasonable or practical construction will support the second clause. While it appears to have a meaning, upon analysis the italicized matter is incapable of precise or intelligible application in fixing venue in proceedings for dissolution of marriage. The first clause of the sentence, which is clear and definite, is mandatory but the second clause, which is uncertain, indefinite, and confusing is permissive. The two clauses are at odds with and contradict each other; they conflict. If the proceedings shall be had in the county of the plaintiff’s residence, as the first clause mandates, they may not be had elsewhere, and yet the second clause permits “the proceedings” to be “directed in” the county of the defendant’s residence. “The proceedings,” according to Black’s Law Dictionary, include all possible steps in an action from its commencement to the execution of judgment. If, following the mandate of the first clause, plaintiff files the petition in the county where plaintiff resides, then how, by whom, and under what practice shall the proceedings be “directed in” the county where the defendant resides? Is plaintiff to “direct” the proceedings “in” (should it have read “into”?) that other county? The judge? The clerk? Proceedings are not directed. The “directed” language in connection with establishing venue is unknown to the law. Process may be directed into another county, but proceedings are not so “directed.” We may not, however, judicially declare that the legislature, in using the word “proceedings” meant to use the word “process.” Relator would have us declare that the legislature intended no change in the venue statute; that the word “proceedings” is a legislative oversight and should be read “process.” This may be so, but we are not at liberty to make the substitution. “The courts cannot venture upon the dangerous path of judicial legislation to supply omissions or remedy defects in matters committed to a co-ordinate branch of the government. It is far better to wait for necessary corrections by those authorized to make them, or, in fact, for them to remain unmade, however desirable they may be, than for judicial tribunals to transcend the just limits of their constitutional powers.” State ex rel. Crow v. West Side St. Ry. Co., 146 Mo. 155, 47 S.W. 959, 961 (1898).

The words “in the first instance” in reference to “proceedings” further confuse the matter. We find no relevance to these words in this context.

Notwithstanding our earnest endeavor, by resort to every known rule of construction, we are unable to construe the sentence (leaving the second clause in) so as to ascertain and give effect to the legislative intent. “[A] statute must be capable of construction and interpretation; otherwise it will be inoperative and void.” State v. Partlow, 91 N.C. 550 (1884), cited with approval in State ex rel. Crow v. West Side St. Ry. Co., supra. The Crow case further pertinently observes that “ * * * a mere collection of words cannot constitute a law; otherwise the dictionary can be transformed into a statute by the proper legislative formula. An act of the legislature, to be enforceable as a law, must prescribe a rule of action, and such rule must be intelligibly expressed,” and that “ * * * an act of the legislative department cannot be enforced when its meaning cannot be determined by any known rules of construction.” 47 S.W. 1. c. 961.

The only course left open is to declare the second clause of the sentence void, and we so declare on the authority of the Crow case, Missouri Pacific Railroad Co. v. Morris, 345 S.W.2d 52 (Mo. banc 1961), and Diemer v. Weiss, 343 Mo. 626, 122 S.W.2d 922 (banc 1938). The latter two cases quote with approval the following applicable statements of law from 26 Am. and Eng. Ency. Law, 2d Ed., 656:

“When the language of an act appears on its face to have a meaning, but it is impossible to give it any precise or intelligible application in the circumstances under which it was intended to operate, it is simply void; for if no judicial certainty can be settled upon as to its meaning, courts are not at liberty to supply the deficiency or make the statute certain. But legislation cannot be nullified on the ground of uncertainty, if susceptible of any reasonable construction that will support it.”

and the following from Statutory Crimes, 3d Ed., § 41, 3d subdiv.:

“Where the statutory terms are of such uncertain meaning, or so confused, that the courts cannot discern with reasonable certainty what is intended, they will pronounce the enactment void.”

This leaves standing the first clause, which reads: “The proceedings shall be had in the county where the plaintiff resides.” This language is clear and definite. It demonstrates the legislative intent in mandatory language. It prescribes a valid rule of action which is intelligible and enforceable when severed from the balance of the sentence. “ * * * [I]f, after cutting out and throwing away the bad parts of a statute, enough remains which is good to clearly show the legislative intent, and to furnish sufficient details of a working plan by which that intention may be made effectual, then we ought not, as a matter of law, to declare the whole statute bad.” State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S.W. 823, 826 (1913), cited with approval in State ex rel. Enright v. Connett, 475 S.W.2d 78, 81-82 (Mo. banc 1972). Taking the first clause of the sentence, supra, together with the first sentence in Paragraph 1 of § 452.300, along with Rule 54.13(c), we have a complete and workable rule of venue in proceedings for the dissolution of marriage in cases where defendant resides in a county other than the county of plaintiff’s residence. The law of venue in such cases, as thus declared, is the same as that previously provided by § 452.040, RSMo 1969, and its predecessor sections, with which the bar has been familiar for generations.

Preliminary rule made absolute.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . “The rules of the supreme court and applicable court rules apply to all proceedings under sections 452.300 to 452.415.”

      . “All process issued for service within this state may be served anywhere within the state and may be forwarded to the sheriff of any county for the purpose of service.”


author: WEIER, Presiding Judge.

text:
    Elonzo WEEKLY and Monte Silverblatt Plaintiffs-Appellants, v. MISSOURI PROPERTY INSURANCE PLACEMENT FACILITY, Defendant-Respondent.
    No. 36775.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 15, 1976.

      J. Leonard Kline, Clayton, for plaintiffs-appellants.
    Willson, Cunningham & McClellan, Jerome M. McLaughlin, St. Louis, for defendant-respondent.
   WEIER, Presiding Judge.

This appeal arises out of a suit on a fire insurance policy issued by defendant, Missouri Property Insurance Placement Facility, a state regulated agency to place basic insurance in urban areas under § 379.810 et seq., RSMo 1969, to recover for loss sustained when the insured building was damaged by fire on January 14,1973. Suit was filed by Elonzo Weekly, the owner, and Monte Silverblatt, the named trustee in two deeds of trust against the property. The case was tried to the court which found for defendant, and plaintiffs appeal.

In 1960, Elonzo Weekly and his wife purchased certain property at 5759 Wabada in St. Louis for $3,500.00 from the Silverblatt Realty Company. The purchase was financed by two deeds of trust, the first in the amount of $4,000.00 and the second in the amount of $3,500.00. Silverblatt Realty Company serviced both deeds of trust. The owner’s monthly payment of $75.00 was to cover principal and interest on the second deed of trust, interest only on the first deed of trust, and an escrow fund for payment of property taxes. The insurance was to be paid for separately by the owner.

The owner encountered financial difficulties and at one point fell three and one-half years behind in his payments so that the property had to be refinanced. In late 1969 or early 1970, the owner and his wife separated and vacated the premises. His wife transferred title to Mr. Weekly who thus became sole owner of the property. Silver-blatt Realty Company then took over management of the property for rental purposes. The poor condition of the property made it necessary for the company to make repairs before it could be occupied. Income from the property was used to repay the company for the amount expended on repairs so that the note holders received no payments for a considerable period. A monthly financial report was sent Mr. Weekly by Silverblatt Company showing the amount of money collected and expended.

Silverblatt Realty Company is a corporation owning and operating a family real estate business. Roy Silverblatt is president and his brother, plaintiff Monte Silver-blatt, is vice-president and treasurer. In addition to buying and selling real estate, they also manage real estate and service real estate loans. Roy Silverblatt is an insurance broker.

The owner made no payments on the notes securing the deeds of trust after October, 1969 when he vacated the property. Property taxes for 1965 were paid in 1967 or 1968. Thereafter no taxes were paid covering this property either by plaintiffs or Silverblatt Realty Company. Under the initial arrangement with the owner, the Silverblatt Realty Company was responsible for accumulating a fund with which to pay the taxes. Although by the same arrangement the owner was initially responsible for insurance payments, it appears that from the time it took over management of the property Silverblatt Realty Company also took over the responsibility for insurance payments.

Roy Silverblatt testified that when the time came for renewal of insurance, a notice was sent to Weekly who then came to the realty office on June 21, 1972 and provided Silverblatt with answers to the questions in the application, which Silverblatt typed in. He presented it to Weekly for examination and his signature, and then sent it to defendant. From the application and testimony of defendant’s manager, it appears that Roy Silverblatt made a prior attempt to renew this policy without the assistance of Mr. Weekly. The same application had been first received by defendant on June 5,1972, but was returned to Silver-blatt because several items, among them Mr. Weekly’s signature, were missing. Defendant again received the application on June 26 and again had to return it to Roy Silverblatt for answers to questions number 4, asking for the requested renewal date, and number 16, “are there any delinquent taxes against this property?”. Roy Silver-blatt says that he telephoned Mr. Weekly for this information and questioned him about the existence of delinquent taxes. Weekly supposedly answered “not to his knowledge” and Silverblatt then answered “no” by putting an “X” in the appropriate spot. Weekly does not remember the conversation. The application was again submitted to defendant on July 5, 1972, and a policy in the amount of $5,000.00 for fire and extended coverage was issued in the name of Elonzo Weekly, to run from July 15, 1972 to July 15, 1978, with mortgage clause made payable to Monte Silverblatt. In filling out the application Roy Silverblatt was acting as broker for Weekly and the mortgagee, not as agent for defendant.

The evidence has little information about the identity of the holders of the mortgages and the balance due on the two notes at the time of loss. Although both deeds of trust contain the name E. Davis as beneficiary, this person was evidently a straw party since Roy Silverblatt testified the financing was completed through two individuals, one for the $4,000.00 note and first deed of trust, and one for the $8,500.00 note and second deed of trust. No exact amount due on either appears, but Roy Silverblatt testified “around” three thousand was due on the first and “a little under” two thousand on the second. He still “represented” the holders of the loans. The company had a fifty percent interest in the loan secured by the second deed of trust.

The building was damaged by fire on January 14,1973, in an amount in excess of $5,000.00. Weekly was notified but did not go to inspect the damage. Roy Silverblatt had the building boarded up. Defendant was informed of the fire loss and engaged a firm of public adjusters who discovered the tax delinquency for the years after 1965 and notified defendant. Defendant then wrote to Weekly declaring the policy void ab initio, stating that thé policy “would not have been issued by this company had it not been induced to execute the policy be [sic] your false representation” regarding delinquent taxes. A check for $51.07, representing the premium payment plus six percent interest, was enclosed . Copies of the letter were sent to Roy and Monte Silverblatt. This suit ensued and was tried to the court which found for defendant.

There is no dispute in this case that the application for insurance contained a misrepresentation. Question number 16 regarding the existence of delinquent taxes was answered in the negative. Actually, property taxes had not been paid since 1965 and two suits had been filed for their collection. On February 26, 1973, with court costs, the total due the collector was $1,337.59.

In their appeal, plaintiffs maintain that the issue to be determined is whether the misrepresentations in the renewal application were material. They refer to American Fire and Indemnity Company v. Lancaster, 415 F.2d 1145 (8th Cir. 1969) which holds that when a representation in an application for insurance is not in the form of a warranty or incorporated into the policy itself “the representation not only must be false, but also material to the risk in order for the insurer to avoid its policy.” American Fire and Indemnity Co. v. Lancaster, supra at 1149[5]. Lancaster was a diversity case in which Missouri law was applied.

“A representation made to an insurer that is material to its determination as to what premium to fix or to whether it will accept the risk, relates to a fact actually material to the risk which the insurer is asked to assume. The word ‘risk’ does not relate to an actual increase in danger but to a danger determined by the insurer’s classification of the various circumstances affecting rates and insurability. That the fact misrepresented has no actual subsequent relation to the manner in which the event insured against occurred, does not make it any the less material to the risk. Thus, whether a misrepresentation is material * * is determined by whether the fact, if stated truthfully, might reasonably have influenced the insurance company to accept or reject the risk or to have charged a different premium, and not whether the insurer was actually influenced.” Miller v. Plains Insurance Company, 409 S.W.2d 770, 774[5] (Mo.App.1966). A fact is considered material when it appears that the insurer would have increased the premium or refused to issue the policy altogether. Bearden v. Countryside Casualty Company, 352 S.W.2d 701, 707[5] (Mo.App.1961).

In its letter to plaintiffs denying liability and declaring the policy void ab initio, defendant stated that its regulations prohibited the issuance of fire insurance policies when taxes on the property were delinquent. The testimony of Lawrence E. Be-nard, defendant’s manager, was to the same effect. He pointed out that a lack of sufficient money with which to pay property taxes is often an indicia of financial inability to maintain the condition of the property, making it more subject to loss. It is also significant that the tax debt of $1,337.59 is a lien on the property under § 137.085, RSMo 1969.

The decision as to whether a misrepresentation was material to the risk is in most instances one for the trier of fact. Buck v. Stuyvesant Ins. Co., 209 Mo.App. 302, 237 S.W. 840, 842[4] (1922). There was sufficient evidence here from which the trial court could conclude, as it did, that the misrepresentation regarding the tax delinquency was material to the risk.

Plaintiffs would have the trial court’s judgment reversed on the ground that there was no evidence that Weekly knew that his representation as to the tax delinquency was false and also that, in light of his third grade education, he could not understand that the existence of delinquent taxes would affect the transaction. Their position, although not expressly articulated, appears from the cases cited to be that the necessary element of intent to deceive on Weekly’s part was not present. See Cohen v. Metropolitan Life Insurance Company, 444 S.W.2d 498 (Mo.App.1969); Toler v. Missouri Ins. Co., 243 S.W.2d 788, 791[2-4] (Mo.App.1951). A finding of intent on Weekly’s part, although possible from the testimony, is not necessary under the facts of this case.

The proper focus here is upon the knowledge and the activities of Roy Silver-blatt, given the position of insurance broker which he occupied with regard to the owner, the mortgagees, and defendant-insurer. By his own admission, in filling out the application for insurance, he was acting for the owner, Weekly, and the mortgage holders. He was clearly not acting as an agent for defendant. Defendant did not employ agents but rather issued policies on the basis of written applications submitted. By general rule of law an insurance broker is generally the agent of those for whom insurance is procured. Schimmel Fur Co. v. American Indemnity Co., 440 S.W.2d 932, 938[2] (Mo.1969); Park v. Fidelity & Casualty Co., 279 S.W. 246, 249[8] (Mo.App.1925), cert. denied, State ex rel. Park v. Daues, 316 Mo. 346, 289 S.W. 957 (1926).

The unavoidable conclusion is that Roy Silverblatt well knew of the tax delinquency. Further, a strong inference can be drawn from this record that he also knew that defendant would not insure the property if made aware of that delinquency. He twice attempted to submit the application without answering the question. There was, therefore, a material misrepresentation, knowingly made, in the application for insurance, in reliance upon which the policy was issued. The trial court’s conclusion that the policy was voidable is correct under the law and the evidence. See Haman v. Pyramid Life Insurance Company, 347 S.W.2d 449, 454[1] (Mo.App.1961). Further, defendant-insurer is not estopped from raising its claim of material misrepresentation because it did not itself investigate to determine whether the statement regarding delinquent taxes was in fact true. Where the answers in the application are complete on their face, the insurer is not obliged to make further inquiry, and absent knowledge of the true facts is not estopped to avoid the policy. Park v. Fidelity & Casualty Co., supra, 279 S.W. at 248[4], cert. denied, State ex rel. Park v. Daues, supra, 289 S.W. 957.

The additional issue on appeal is whether there was sufficient evidence to enable the trial court to conclude that the named mortgagee,, but actually trustee, Monte Silverblatt, knew or should have known of the misrepresentations so as to void the policy as to the mortgagees as well as to the insured mortgagor. The policy contains the “standard mortgage clause” which provides that when the loss is directed to be payable to the mortgagee, the interest of the mortgagee will not be invalidated by the acts or neglect of the mortgagor. When this clause is used, it is generally held that fraud, false swearing, or other misconduct by the mortgagor will not preclude an innocent mortgagee from recovering on the policy. General Motors Acceptance Corp. v. Western Fire Ins. Co., 457 S.W.2d 234, 236 (Mo.App.1970); Annot., 24 A.L.R.3d 435 (1969). The clause does not, however, protect the mortgagee when he participates in, or knows, or should have known of, the acts or neglect of the mortgagor. Citizens State Bank of Dickinson, Tex. v. American Fire & Casualty Co., 198 F.2d 57, 59[4, 5] (C.A.Tex., 5th Cir. 1952); Lumbermen’s Mutual Insurance Co. v. Edwards, 293 F.Supp. 687 (E.D.Mo.1968); Fidelity-Phenix Fire Ins. Co. v. Garrison, 39 Ariz. 277, 6 P.2d 47, 48[3] (1931); Union Trust Co. of Ellsworth v. Philadelphia Fire & Marine Ins. Co., 127 Me. 528, 145 A. 243, 246-7[3, 4] (1929).

The property in question was, at the time of the fire, totally under the management and control of the Silverblatt Realty Company of which Roy Silverblatt was president and his brother, Monte, the named mortgagee, was vice-president and treasurer. All transactions related to this property were handled by the company through its officers, the two Silverblatts. When the wrongdoing can be so directly attributed to the loss-payee, he cannot seek the protection of the standard mortgage clause. The trial court’s conclusion that Monte Silver-blatt knew or should have known of the falsity of the representation made to defendant-insurer is more than amply supported by the evidence.

The judgment of the trial court is there fore affirmed.

McMILLIAN and RENDLEN, JJ., con cur.

      . Weekly’s original arrangement with Silver-blatt provided for the latter to pay property taxes out of the monthly payments. Weekly knew that he had not for some time made any payments. In addition, from the time that Sil-verblatt took over management of the property, monthly reports were sent to Weekly indicating income and expenditures. The income was never even sufficient to pay for the repairs Silverblatt found necessary.


author: COOPER, Chief Justice.

text:
    BURLINGTON INDUSTRIES, INC. and Liberty Mutual Insurance Company, Appellants, v. Shirley Faye VESPIE, Appellee.
    Supreme Court of Tennessee.
    June 1, 1976.
    John W. Wheeler, Hodges, Doughty & Carson, Knoxville, for appellants.
    J. Polk Cooley, Rockwood, for appellee.
   OPINION

COOPER, Chief Justice.

This is a workmen’s compensation action in which the trial judge found that the employee received a compensable injury arising out of and in the course of her employment and awarded compensation benefits for fifty percent permanent partial disability of the body as a whole. The issues we are asked to decide are (1) whether or not there is any material evidence to support the finding of the trial judge that the appellee is disabled by reason of an occupational disease which is compensable under T.C.A. Section 50-1101, and (2) whether or not the extent of the appellee’s disability is supported by material evidence. Appellants also insist that the trial judge erred in the calculation of appellee’s average weekly wage.

Appellee was employed by appellant on March 11,1974, and was assigned to operate a tackitori machine, which we understand is a multiple operation sewing machine. Two weeks later appellant began to develop a problem with the complexion of her face. The condition grew progressively worse and appellee was referred by her family physician to a dermatologist, Dr. Charles I. Hud-dleston, for treatment.

Dr. Huddleston testified he first saw ap-pellee on April 22, 1974. At that time and for several months thereafter, appellee had severe grade IV acneform eruptions on her face, characterized by papules, pustules, blackheads, and small to medium-sized cysts. On treating appellee, Dr. Huddle-ston concluded that the acneform was chlor-acne. a generic term to describe “any acne-like eruptions induced by external agents, like chlorinated hydrocarbons.” Dr. Hud-dleston further testified that the major cause of appellee’s chlor-acne was “the oily substance which she got on her face while she was at work.”

Appellee’s face was severely scarred from the chlor-acne and she has undergone several plastic surgery procedures to try to relieve the condition. Dr. Huddleston testified that the damage to appellee’s face makes appellee more susceptible to future onsets of acne and restricts the ways in which appellee can earn her livelihood in that she should not do “any sort of work where she would be exposed to oils, cutting oils, lubricants,” nor should she work in a hot or humid atmosphere.

Appellee completed the tenth grade in school and has had no specialized training other than on-the-job training in a factory and as an attendant in a nursing home. The latter type employment is foreclosed to appellee because of a back condition not attributable to her employment by appellant. Future employment in a factory is limited by the restriction that appellant not be exposed to oils.

The trial judge concluded that chlor-acne is a form of dermatitis and that it was causally related to the conditions under which the appellee’s work was performed. He further found that appellee sustained a residual permanent partial disability of fifty percent to the body as a whole as the result of the chlor-acne. In our opinion the above evidence is adequate to support the findings of the trial judge.

Dermatitis is a generic term to describe inflammation of the derma or true skin, and is a listed occupational disease covered under the Workmen’s Compensation Act. See T.C.A. 50-1101. Appellee’s skin eruptions were of such severity that they were apparent to the most casual observer, the real question being whether the skin eruptions were caused by the hazards of appellee’s employment. Dr. Huddleston testified unequivocally that they were. He also testified to limitations on future employment by appellee as the result of the chlor-acne. These limitations, coupled with appellee’s lack of education and specialized training and her severe facial scarring, in our opinion justify the award of fifty percent permanent partial disability to the body as a whole.

As to the contention that the trial judge erred in calculating appellee’s average weekly wage, the weekly benefits awarded appellee were predicated upon earnings of $88.00 per week. This is in harmony with testimony of the personnel director that appellee had a regular work week of forty hours, and with appellee’s testimony that she was being paid at the rate of $2.20 per hour when she became disabled.

The judgment entered in the trial court is affirmed. Costs of the appeal are adjudged against the appellant and its surety.

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