author: FLANIGAN, Judge.

text:
    Coney CRAIN, Plaintiff-Respondent and Plaintiff-Appellant, v. WEBSTER ELECTRIC COOPERATIVE, Defendant-Appellant and Defendant-Respondent.
    Nos. 10030, 10031.
    Missouri Court of Appeals, Springfield District.
    May 17, 1978.
    Motion for Rehearing and Application to Transfer Denied June 12, 1978.

      Harold J. Fisher, William H. McDonald, Woolsey, Fisher, Clark, Whiteaker & Sten-ger, Springfield, for defendant-appellant and defendant-respondent.
    Bernard A. Barken, St. Louis, Turner White, III, Springfield, for plaintiff-respondent and plaintiff-appellant.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action for the wrongful death of Danny Allen Crain who was electrocuted on December 14, 1972, when he came into contact with a power line owned by defendant Webster Electric Cooperative (“Webster”). Danny was born June 28,1952. Coney Crain, Danny’s surviving father, is the plaintiff. A jury found in favor of plaintiff and the verdict was in the amount of $41,-600. Defendant appeals.

It is necessary to consider four of defendant’s “points relied on.” The validity of any of the first three points would require outright reversal. The fourth, if valid, requires reversal and remand. This court finds that the first three points are not valid but that the fourth point is meritorious.

Defendant’s first point is, in essence, that the trial court should have dismissed the action (and erred in not granting defendant’s in-trial motions for that relief) because: (a) the petition failed to allege that Danny’s mother “was unable, declined, or refused to join” in the action and (b) the evidence was insufficient to show that Danny’s mother was unable or declined or refused to join in the action.

The allegations of the petition included the following:

“2. That at the time of his death, the said Danny Allen Crain was an unmarried, minor child, and was survived by his father, the plaintiff, herein, and by his mother, Aline Bohling; that plaintiff brings this action on his behalf for the use and benefit of the said Aline Bohling, pursuant to the Revised Statutes of the State of Missouri, Section 537.080; that plaintiff had the sole care, custody and control of the said Danny Allen Crain, pursuant to a decree of divorce from the said Aline Bohling . . . ”

Prong (b) of defendant’s first point will be examined first. Plaintiff’s attorney Bernard A. Barken offered and the court received into evidence a copy of a letter dated March 5, 1974, which Mr. Barken sent to decedent’s mother, Mrs. Aline Bohling. Material portions of the letter are set forth below.

Mr. Barken testified that the letter was sent to Mrs. Bohling by certified mail. The envelope containing the letter was accorded certified mail number 641861. A copy of the return receipt for certified mail number 641861, bearing the signature “Mrs. Aline Bohling,” was produced. The receipt

showed the date of delivery to be March 8, 1974. Mr. Barken also testified, “I have received no written or oral response to the letter from Mrs. Bohling or from anyone else on her behalf.”

Defendant made no objection to the admissibility of the foregoing evidence. Defendant’s attack, initiated below and renewed here, is upon its sufficiency. Defendant claims that the evidence is insufficient because it fails to show (1) “that Mrs. Bohling’s address was in fact that which was shown on the letter”; (2) “that the letter was mailed (how, when and where)”; and (3) “that the postage was prepaid.”

Defendant’s reply brief in this court withdraws, at least tacitly, ground (1) and rightly so because one of defendant’s exhibits showed Mrs. Bohling’s address to be that stated in the letter.

Grounds (2) and (3) are also unavailing. Testimony by Mr. Barken that the letter was sent to Mrs. Bohling by certified mail was equivalent to a statement by the witness that it was properly addressed, stamped and deposited in a proper place for the receipt of mail. J. L. Price Brokerage Co. v. Chicago R.I. & P. Ry. Co., 207 Mo. App. 8, 230 S.W. 374, 377[3] (1921). That case also states that “such testimony is sufficient to raise a presumption that it was received in due course.” Additionally, the return receipt itself was prima facie evidence of the delivery of the letter on the date shown on the receipt, 39 U.S.C.A. § 5013; 39 U.S.C.A. § 5010. Defendant offered no evidence to the contrary.

Plaintiff’s evidence of the fact that Mrs. Bohling declined to join in the action was not insufficient for any of the reasons assigned by defendant. Accordingly there is no merit to prong (b) of defendant’s first point. This determination in effect disposes of prong (a).

Rule 55.33(b) provides, in pertinent part:

“(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

The issue of Mrs. Bohling’s declining to join in the action was tried by the implied consent of the parties, defendant having made no objection to the evidence on that issue. Accordingly the issue is to be treated in all respects as if it had been raised in the pleadings. Rule 55.33(b). The result of the trial of that issue is unaffected by the failure to amend the pleadings so as to cause them to conform to the evidence.

Defendant made no objection to the evidence under discussion either on the ground that it was not within the issues made by the pleadings or on any other ground. Whether the petition in its original form, unaided by the mentioned evidence, would have been insufficient need not be, and is not, ruled.

Defendant’s first point has no merit. Defendant’s second point is that the trial court erred in failing to sustain defendant’s motion for a directed verdict, filed at the close of all of the evidence, because the evidence showed as a matter of law that Danny was a “borrowed servant” of defendant, and that plaintiff’s sole remedy is that afforded by the Workmen’s Compensation Law.

When a defendant in a common law action for damages asserts that the action will not lie because the injured person (or, as here, the decedent) was the “borrowed servant” of the defendant, the defense is an affirmative one and the burden rests upon the defendant to plead and prove it. Dunn v. General Motors Corp., 466 S.W.2d 700, 703[2] (Mo.1971); Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87, 91[4] (Mo.App.1972). If the evidence showed, as a matter of law, that Danny was a “borrowed servant” of defendant, the trial court should have directed a verdict for defendant for, in that situation, plaintiff’s “exclusive remedy was under the Workmen’s Compensation Act. That act, if applicable, would supersede any right plaintiff might otherwise have had to maintain an action at common law.” Walton v. United States Steel Corporation, 362 S.W.2d 617, 620 (Mo.1962); Sippel, supra, 480 S.W.2d at p. 89; § 287.120(2).

In reviewing the trial court’s ruling on defendant’s motion for a directed verdict this court must view the evidence in its light most favorable to the plaintiff and plaintiff is to be given the benefit of all reasonable inferences. Black v. Kansas City Southern Ry. Co., 436 S.W.2d 19, 23[1] (Mo. banc 1968). Defendant’s evidence must be disregarded unless it aids plaintiff’s case. Kaelin v. Nuelle, 537 S.W.2d 226, 232[6] (Mo.App.1976); Anderson v. Welty, 334 S.W.2d 132, 133[1, 2] (Mo.App. 1960). A trial court “is ordinarily not justified in directing a verdict in favor of the party having the burden of proof, when the evidence relied on consists of oral testimony.” Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, 57[5] (Mo.1973); see also Young v. Hall, 280 S.W.2d 679, 682 (Mo.App.1955).

“A [trial] court should never withdraw a question from the jury, unless ‘all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion from the facts which condition the issue.’ . . Where there is uncertainty arising ‘from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury.’ ” Walton v. United States Steel Corporation, 362 S.W.2d 617, 621[2] (Mo.1962).

Our supreme court has said: “The essential elements constituting a ‘borrowed servant’ relationship have been stated several times. Essentially, they are: ‘(a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special master pursuant to an express or implied contract so to do; and (e) power of the special employer to control the details of the work to be performed and to determine. how the work shall be done and whether it shall stop or continue.’ Ellegood v. Brashear Freight Lines, Inc., 236 Mo. App. 971, 162 S.W.2d 628 (1942); Feldmann v. Dot Delivery Service, 425 S.W.2d 491 (Mo.App.1968). Slightly differently worded definitions have been stated, Dickhaut v. Bilyeu Refrigerated Transport Corp., 441 S.W.2d 54, 1. c. 57 (Mo.1969), 1A Larson’s Workmen’s Compensation Law, § 48.10, but essentially the requirements as variously stated coincide.” Ballard v. Leonard Brothers Transport Co., Inc., 506 S.W.2d 346, 350[2] (Mo.1974).

Most of the evidence to be recounted emanated from plaintiff’s witnesses. There are few, if any, factual disputes but the parties differ on what conclusions must be drawn from the evidence which underlies the borrowed servant issue.

Plaintiff argues that defendant’s failure to offer an instruction on that issue constituted an abandonment or waiver of defendant’s second point. That argument is unsound. If the facts are not in dispute, and if they lead to but one conclusion, the question of whether Danny was defendant’s borrowed servant was one of law for determination by the court, as presented to it by defendant’s motion for directed verdict, and defendant did not waive or abandon the point by not submitting it to the jury. Daniels v. Krey Packing Co., 346 S.W.2d 78, 81[2] (Mo.1961); Ballard v. Leonard Brothers Transport Co., Inc., supra, 506 S.W.2d at 352.

Defendant Webster is a Missouri corporation engaged in the business of selling and distributing electrical energy. Such was Webster’s “usual business” according to its response to a request for an admission. Its principal office is located at Marshfield, Missouri, and it serves Webster County and adjoining counties.

On the night of Monday, December 11, 1972, an ice storm occurred which caused extensive damage to Webster’s electrical system and necessitated an unusual amount of repairs.

On the morning of December 12 Webster’s “manager,” Thomas Hyde, made telephone calls to five electric cooperatives or electric companies requesting them to “send out whatever available manpower and equipment that could be spared.” Frazier Brothers, Inc. (“Frazier”) was one of the five.

The oral agreement, made by telephone, between Webster and Frazier did not specify or designate the persons who were to perform the work to be done. Webster did not specifically request Danny to be one of the persons furnished. There was no specific agreement as to who was to furnish the tools and equipment to be used in the-repair work but it was assumed, “as is customary,” that each workman would provide his personal equipment and Frazier would furnish “all additional equipment that could be spared.” The remainder of the equipment was furnished by Webster.

According to Hyde, Webster was not engaged in the business of repairing broken lines “as such”; “not as a business, it’s incidental to our business.”

Lyndell Frazier, president of Frazier, testified that the principal business of Frazier was constructing and rebuilding power lines. Ordinarily Frazier did not work on electric lines which were “hot” or energized.

Danny, who was 20 at the time of his death, had worked for Frazier for approximately six months. Danny first did unskilled labor for Frazier, but by December 1972 Danny “had worked into an apprentice lineman’s position, started climbing poles and doing a little bit of line work.” Danny’s duties when working for Frazier did not include working on energized lines and Danny had had no experience working on such lines. Webster did not know anything about Danny’s experience in working on or about transmission lines and made no inquiry concerning that subject.

Danny was one of seven Frazier employees supplied to Webster to assist in repairing the storm damage. Frazier’s itemized bill to Webster, submitted after the accident, showed that Danny worked 46.5 hours (24 hours regular time, 22.5 hours overtime). The other six employees worked a total of 136 hours. Frazier billed Webster for the salaries which Frazier paid its seven employees. The bill also included items for “payroll taxes and insurance,” “operating overhead,” “use of small tools and supervision,” and the use for 18 hours of equipment consisting of a pickup and a digger.

Danny’s work on the Webster repairs commenced on Tuesday, December 12, and ended, tragically, about 6:30 p. m. on Thursday, December 14, when he was killed by a shock which he received by grasping a fallen electrical line on the Webster transmission system.

Danny lived in Springfield. On the three days he worked on the Webster repairs Danny and other Frazier employees “rode back and forth” from Springfield to Marsh-field in a pickup truck provided by Frazier. On Tuesday and Wednesday Danny worked with Phillip Ragsdale, who was employed by Webster and had been for 18 years. Ragsdale was the “number 3 man” in Webster’s field force. Ragsdale testified that Danny was not expected to work on “hot lines.”

On Thursday, December 14, Danny worked with Cecil Smith, who was Webster’s line superintendent and the “number 1 man” in Webster’s field force. According to Smith, who was one of plaintiff’s witnesses, Danny told Smith that he would do what Smith instructed him to do and would not do anything unless Smith told him. Smith “would always give Danny instructions before Danny did anything.”

On the evening of the tragedy Danny and Smith went to the accident scene, a few miles from Marshfield, in a pickup truck owned by Webster. Another truck, which was a “digger truck,” arrived at the scene shortly thereafter. Riding in the digger truck were Ragsdale and Gary Atkinson, both employees of Webster.

The four men had previously been notified by radio that there was an “outage” in the area where the accident occurred. Smith and Danny had driven along the Webster transmission system looking for the outage. It was dark and Danny shined his spotlight “along the lines looking for any problems.” Smith saw the fallen line and said to Danny, “There is our trouble.” Smith parked the pickup nearby and awaited the arrival of the digger truck. Smith and Danny stayed in the pickup until the other truck arrived. Smith did not then know that the fallen wire was “hot.”

Upon the arrival of the digger truck Smith got out of the pickup and went to the digger truck where he conversed with Ragsdale for three to five minutes. During that time, Danny got out of the pickup. None of the three Webster employees saw Danny do so, but about five minutes after the digger truck arrived, Danny was “discovered missing.” A search for Danny ensued and Smith found Danny lying near the bottom of the pole from which the broken wire hung, about 60 feet from the digger truck. Danny’s hands bore marks of electrical burns. The hot wire was “hanging from the top of the pole down to the ground” and it was emitting sparks. Efforts to revive Danny were to no avail and he was pronounced dead on his arrival at a nearby hospital.

Danny had brought his own personal tools, “such as linemen usually carry,” when he began the Webster repair work. Danny was not on Webster’s payroll at the time of his death but was on Frazier’s payroll.

The elements of a “borrowed servant” relationship, as set forth in Ballard, supra, 506 S.W.2d at 350, are: (a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special employer pursuant to an express or implied contract so to do; and (c) power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.

Dispositive of defendant’s second point, is whether element (a) is established, as a matter of law, by the evidence. As plaintiff points out, each of the three elements of the borrowed servant relationship, as set forth in Ballard, supra, must be shown. Even if, which need not be decided, the evidence shows the existence of elements (b) and (c), it does not necessarily follow that element (a) is shown. To hold otherwise would be to say that there was no need for element (a) to be included in the Ballard formula.

With regard to the consent required by element (a), the court, in Ballard, supra, 506 S.W.2d at 351 said: “The consent of the employee may be implied from his action in proceeding with the employment, his general acceptance of it, and his obedience to orders . . . although the consent must be deliberate and informed.”

In addition to Ballard, Missouri cases discussing the factor of “consent on the part of the employee to work for the special employer” include: Brown v. Missouri Lumber Transports, Inc., 456 S.W.2d 306 (Mo.1970); Wright v. Habco, Inc., 419 S.W.2d 34 (Mo.1967); Patton v. Patton, 308 S.W.2d 739 (Mo.1958); Andra v. St. Louis Fire Door Company, Inc., 287 S.W.2d 816 (Mo.1956); Stroud v. Zuzich, 271 S.W.2d 549 (Mo.1954); Feldmann v. Dot Delivery Service, 425 S.W.2d 491 (Mo.App.1968); Schepp v. Mid City Trucking Co., 291 S.W.2d 633 (Mo.App.1956); Wittgrove v. Green Lea Dairies, Inc., 223 S.W.2d 114 (Mo.App.1949); Ellegood v. Brashear Freight Lines, Inc., 162 S.W.2d 628 (Mo.App.1942).

Ballard, Wright, Andra, and Ellegood were tort cases. In each of them the defendant asserted the affirmative defense that the action would not lie because plaintiff was its borrowed servant. In Andra the borrowed servant relationship was found, as a matter of law, not to exist. Andra was injured while helping defendant’s regular employees raise a door and the duration of the work which Andra did for defendant was 15 to 30 minutes. In Ballard, Wright, and Ellegood the borrowed servant relationship was found, as a matter of law, to exist. Ellegood and Ballard involved truck leases where plaintiff was held to be the borrowed servant of the lessee. It is not clear how long the borrowed servant relationship existed in Ellegood, but in Ballard it had lasted two years before the injury occurred. In Wright the relationship between plaintiff and defendant lasted 44 days before plaintiff was injured during the work of cleaning defendant’s building. In Ballard, Wright, and Ellegood the consent of plaintiff, although implied consent, was found to exist as a matter of law. It is Ballard and Wright upon which defendant places its principal reliance.

In Ballard the court pointed out that the business of plaintiff’s regular employer was to furnish tractors and drivers to others, principally to defendant. The court said, at p. 352: “Plaintiff knew this and, when employed, immediately entered into the regular operation of tractors for [defendant], under the direction of [defendant’s] terminal manager. He clearly consented to that arrangement . . . . This exclusive work for [defendant] continued for two years . . . .”

In Wright plaintiff’s regular employer was Manpower, Inc. The court, at p. 36, stated: “Plaintiff knew when he was hired by Manpower that all of his work would actually be performed for various customers of his general employer. The very fact that he entered into an employment arrangement of that nature would constitute a general consent to work for special employers such as defendant.”

Brown, Patton, Stroud, Feldmann, Schepp, and Wittgrove were workmen’s compensation cases. In Brown and Witt-grove the defense was that plaintiff was the borrowed servant of a non-party. In Patton, Stroud, Feldmann and Schepp there were two defendants, one claiming that the" plaintiff was the borrowed servant of the co-defendant.

In Patton and Feldmann the relationship of borrowed servant was found to exist. The ruling in Patton was not that the relationship existed as a matter of law but that the Industrial Commission was justified in finding as a matter of fact that the relationship existed and that the plaintiff had impliedly consented to it. Patton involved the leasing of a truck and the duration of the relationship between the borrowed servant and the special employer was three months. In Patton the borrowed servant had “passed all requirements for a driver of explosives to [the special employer’s] satisfaction, and was a driver approved by [the special employer]. This was sufficient evidence to sustain a finding he consented to render services for and obey the directions of [the special employer] in hauling explosives.”

In Feldmann the employee’s consent to the borrowed servant relationship was “conclusively established.” The court emphasized that the claimant had operated a truck in the service of the special employer for a period of more than five years and had followed the latter’s instructions throughout that period. It was shown that the employee had applied “for the particular job of driving the truck for [the special employer] and that he was hired ‘to drive on this particular contract’ that [the regular employer] had with [the special employer].”

In Brown, Stroud, Schepp and Wittgrove the borrowed servant relationship was found not to exist. In Brown and Stroud the non-existence of the relationship was based on a finding of fact. In Schepp and Wittgrove the non-existence of the relationship was found as a matter of law. The duration of the relationship between plaintiff and the alleged special employer was one day in Brown, one day in Stroud, one day in Schepp, and 10 or 11 days in Witt-grove. Wittgrove, however, clearly involved the lack of consent on the part of the employee because the employee was unaware of the existence of the alleged special employer.

Schepp stresses the importance of the consent factor. The court in Schepp, at p. 642, says: “While ‘consent’ to work for the special employer may be inferred from an employee’s acceptance of and obedience to orders given him by the ‘special employer’ . such ‘acceptance of and obedience to orders’ must be considered in connection with all the facts and circumstances in evidence, and the mere physical act of performing some service that is the ‘work of and for’ the special employer, pursuant to the command of the general employer, does not alone justify the inference of ‘consent.’ ”

The formula in Ballard does not require that the relationship between the employee and the special employer exist for a certain length of time before it blossoms into a borrowed servant relationship. Nevertheless, when the issue has been presented, the courts almost invariably have pointed out how long the relationship had existed and it appears that its duration is an evidentiary factor which may be taken into consideration in determining whether or not the three elements set forth in Ballard have been shown.

In Andra, supra, 287 S.W.2d at p. 819 the court pointed out that if a borrowed servant relationship exists, “most' important of all, he loses the right to sue the special employer at common law for negligence; and when the question has been presented in this form, the courts have been very vigilant in insisting upon a showing of a deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit. . . .” The same language appears in Stroud, supra, 271 S.W.2d at p. 556. Andra, at p. 821, states that “consent cannot be inferred merely from the fact that the employee obeyed the commands of his master in entering the services of another.”

In Ballard, 506 S.W.2d at p. 352 the court said the issue of employment “usually is in the first instance one of fact.”

As might be expected, neither plaintiff nor defendant, in their respective and excellent briefs, has cited any case factually similar. Danny’s work for defendant was brief in duration. The conditions which occasioned it were unusual. There is no showing that its actual duration was either predicted or predictable. Several of his co-employees worked fewer hours for Webster. At the time of the casualty itself he came into contact with a hot line, a situation, according to the evidence, not within the contemplation of anyone. There was no showing of an express consent on Danny’s part to the creation of a special relationship between him and Webster. There was no showing of any express consent of the “informed and deliberate” variety.

The question is a close one. It may well be that the evidence is sufficient to permit a finding, as a matter of fact, of element (a), Danny’s consent, but may it properly be said that the evidence compels that finding as a matter of law "l This court answers that question in the negative. It follows that the trial court did not err in the manner asserted in defendant’s second point and the latter has no merit.

Defendant’s third point is that the trial court erred in failing to sustain defendant’s motion for directed verdict, filed at the close of all of the evidence, because the evidence showed as a matter of law that Danny was a “statutory employee” of defendant and that plaintiff’s sole remedy is that afforded by the Workmen’s Compensation Law.

When a defendant in a common law action for damages asserts that the action will not lie because the injured person (or, as here the decedent) was the “statutory employee” of the defendant, the defense is an affirmative one and the burden rests upon the defendant to plead it and prove it. Greiser v. Western Supplies Company, 406 S.W.2d 13,16[1] (Mo.1966); Miller v. Municipal Theatre Association of St. Louis, 540 S.W.2d 899, 906[14] (Mo.App.1976). If the evidence showed, as a matter of law, that Danny was the “statutory employee” of defendant, the trial court should have directed a verdict for defendant for, in that situation, plaintiff’s exclusive remedy would be under the Workmen’s Compensation Law. Walton v. United States Steel Corporation, 362 S.W.2d 617, 621[2] (Mo.1962); Brown v. Gamble Const Co., Inc., 537 S.W.2d 685, 689[9] (Mo.App.1976).

The principles governing appellate review of a trial court’s ruling on a defendant’s motion for directed verdict have been set forth under defendant’s second point and are applicable here.

Section 287.040(1) reads: “Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.”

Although the term “statutory employees” is not found in § 287.040(1), “those contractors, subcontractors, and their employees who are thereby brought within its coverage are commonly referred to as ‘statutory employees’, that is, as employees who are to be deemed to occupy the status of employees only by virtue of express statutory provision designed to accomplish the remedial object of the act, but who in actual fact are under no legal relationship of master and servant with the employer who is arbitrarily made liable under the act.” Rucker v. Blanke Baer Extract & Preserving Co., 162 S.W.2d 345, 347 (Mo.App.1942).

“The purpose of [§ 287.040(1)] is to prevent an employer from evading workmen’s compensation liability by hiring independent contractors to perform the usual and ordinary work which his own employees would otherwise perform.” Miller v. Municipal Theatre Association of St. Louis, supra, 540 S.W.2d at 906.

Before one may properly be classified as a statutory employee, the following elements, extracted from § 287.040(1), must be shown: (1) the work was being done under contract, (2) the injury or death occurred on or about the premises of the alleged statutory employer, and (3) the injury or death happened while the alleged statutory employee was doing work in the usual course of business of the alleged statutory employer, that is, work which is an operation of the usual business which the statutory employer there carries on. Wallace v. Porter DeWitt Construction Company, 476 S.W.2d 129, 131[2] (Mo.App.1971); Johnson v. Medlock, 420 S.W.2d 57, 61[6] (Mo.App.1967); Shireman v. Rainen Home Furnishers, Inc., 402 S.W.2d 64, 68[6] (Mo.App.1966).

“All three elements must be satisfied before an employee is held to be a statutory employee.” Ferguson v. Air-Hydraulics Company, 492 S.W.2d 130, 135[5] (Mo.App.1973). If the three elements are present, plaintiff was a statutory employee “whether or not plaintiff affirmatively consented to that relationship.” Anderson v. Benson Manufacturing Company, 338 S.W.2d 812, 814 (Mo.1960); Montgomery v. Mine La Motte Corp., 304 S.W.2d 885, 890[8] (Mo.1957).

The initial inquiry is whether element (1) is present. This in turn involves the question of whether the arrangement between Webster and Frazier was the type of contract contemplated by element (1). Although the wording of § 287.040(1) is such that the injured person may be the contractor himself, as distinguished from one of his subcontractors or one of his employees, under the facts here Danny’s relationship with Webster arose by reason of the Frazier-Webster arrangement rather than by reason of a Danny-Webster arrangement. If there was a contractor in the case at bar it was Frazier and not Danny.

The evidence concerning the arrangement between Frazier and Webster is contained in the testimony of Webster’s manager Hyde, introduced by plaintiff, concerning his telephone conversation with Lyndell Frazier, president of Frazier. That testimony is as follows:

“Q. What was the substance and the nature of your conversation with Mr. Frazier?
A. Of course, it wasn’t recorded, or we have no actual facts to go on other than just memory, and, of course, that was some six, eight, nine months ago. As I recall, it was, ‘Do you have some people, some equipment? Can you give us some help? We have systems down. We have a lot of people out of service. We have a lot of our systems down, poles broken off.’ The damage was prevalent in just about all the areas in the areas which we serve. And, ‘We need whatever you can send us in the way of men and equipment.’
Q. Did you discuss with Mr. Frazier what the price would be?
A. No.
Q. How payment would be made?
A. No, sir. Not at that time, no.”

In Ferguson v. Air-Hydraulics Company, supra, 492 S.W.2d 130, plaintiff Ferguson was a truck driver employed by Ryder. Ryder had a contract with Ryerson under which Ryder leased a truck and supplied a driver (Ferguson) to Ryerson for the purpose of delivering goods. Plaintiff delivered some steel to the plant of defendant Air-Hydraulics Company. Plaintiff was injured while he was helping one of defendant’s regular employees unload the steel. At p. 136 the court said:

“In examining the purposes of the statute and the elements which must be satisfied to make the employee Ferguson a statutory employee of Air-Hydraulics, we find that there was no contract within the meaning of § 287.040(1) to substantiate the conclusion that Ferguson was a statutory employee of Air-Hydraulics. Not every type of contract will suffice to satisfy that element of the statute. The contract contemplated within the meaning of the statute must be a contract which delegates to another the usual operation of the employer’s business. There is no evidence here that Air-Hydraulics at any time contracted out its unloading operation to Ryerson or Ryder or to anyone else. .
“The relationship existing between Air-Hydraulics and Ryerson Steel, to whom the driver and truck were leased, was that of buyer and seller rather than one of contract to unload. Under such circumstances Ferguson cannot be held to be a statutory employee.’’ (Emphasis added)

In Shafer v. Southwestern Bell Telephone Company, 295 S.W.2d 109 (Mo.1956), Shafer met his death by electrocution. At the time Shafer was an employee of Western Electric Company, a contractor employed by Southwestern Bell Telephone Company, (“Bell”). Shafer was lacing telephone cable, “an uncomplicated job,” in Bell’s building when he came into contact with a fuse panel which emitted the fatal shock.

Bell contended that it was entitled to a directed verdict because the evidence established that Shafer was an employee of an independent contractor doing work under contract on Bell’s premises in the usual course of Bell’s telephone business. The supreme court held that the trial court did not err in refusing to direct a verdict for Bell. At p. 115 the court said:

“The work of Shafer was being done on Bell’s premises. Although it is clear that Shafer was an employee of Western Electric Company which frequently does work under contract for Bell, the evidence does not disclose the work, of which cable lacing apparently was a part, to be done by Western Electric Company under the contract. We cannot determine that the work being done under contract by Western Electric Company, as distinguished from the specific act being done by Shafer, was an operation of the usual business carried on by Bell on the premises.”
“In State ex rel. Long-Hall Laundry and Dry Cleaning Company v. Bland, 354 Mo. 97, 188 S.W.2d 838, 842, it was said that the statute declares the operation performed by the workman must be a part of the usual business which the particular employer carries on. The term ‘operation performed by the workman’ as used in the above cited case does not mean the specific act the workman was doing at the time he was injured, but it means the operation of the workman done in performing “work done under contract,” which work is “an operation of the usual business which he [in this case Bell] there carries on.” ’ ’’

In Shafer the defense of statutory employee failed because the evidence failed to show what work was to be done by Western Electric Company under Western’s contract with Bell.

In Wright v. Habco, Inc., 419 S.W.2d 34 (Mo.1967) plaintiff, a regular employee of Manpower, Inc., was injured when he fell from a scaffold while working in defendant’s building. Defendant argued successfully, as a defense to the tort action, that plaintiff was its borrowed servant. Plaintiff sought to avoid that defense by relying upon the provisions of § 287.040(3). Subsection (3) of § 287.040 carves out exceptions to the provisions of § 287.040(1) which deals with “statutory employees.” The following language in Wright is instructive here:

“Plaintiff also contends that his claim against defendant would not be governed by the compensation law because of the exclusionary provisions of § 287.040(3), which reads as follows: ‘The provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished, altered or repaired by an independent contractor but such independent contractor shall be deemed to be the employer of the employees of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work.’ (Italics ours.) He says that Manpower was an independent contractor engaged to clean up defendant’s building. That contention is based upon an erroneous factual premise and is without merit. There is no evidence to support a finding that Manpower contracted to clean defendant’s building. It merely furnished two laborers to do any type of general labor defendant might direct them to do. In that situation Manpower was not an independent contractor and § 287.040(3) has no application to this case.” (Emphasis added) Wright, supra, at p. 38.

The testimony of plaintiff’s witness Hyde, set forth above, does not compel the conclusion that there was a contract between Webster and Frazier whereby Frazier was to do work under the contract. In the language of Ferguson, supra, there was no contract by which Webster delegated to Frazier the usual operation of Webster’s business. If there had been such a contract, the appropriate inquiry would have been, in the language of Shafer, supra, the nature of the work to be done by Frazier under the contract, as distinguished from the specific act being done by Danny. In the language of Wright, supra, there is no evidence to support a finding that Frazier contracted to repair Webster’s downed lines, or to do any other work of which repairing downed lines was a part. Frazier merely furnished laborers, including Danny, to do what Webster might direct them to do.

This court holds that the record does not establish, as a matter of law, that Danny was a statutory employee of Webster within the scope of § 287.040(1). Accordingly it is unnecessary to determine, had Danny been within such scope, whether the exclusionary provisions of § 287.040(3) would come into play on this record.

Defendant’s third point has no merit.

Defendant’s fourth point is that the trial court erred in giving Instruction No. 4, a verdict-director submitted by plaintiff, for the reason that it omitted a necessary element of the ground of liability submitted. The instruction reads:

“Instruction No. 4

Your verdict must be for plaintiff, Coney Crain, if you believe:

First, that the broken electric line of defendant in the area where Danny Allen Crain was working was energized and as a result persons coming into contact with said line would be exposed to danger, and
Second, defendant knew or by using ordinary care could have known of such danger, and
Third, defendant failed to use ordinary care to warn Danny Allen Crain of it, and
Fourth, as a direct result of such failure, Danny Allen Crain, died, unless you believe plaintiff, Coney Crain, is not entitled to recover by reason of Instruction No. 7.”
Defendant contends that the instruction is erroneous in failing to require a finding that Danny lacked both actual and constructive knowledge of the dangerous condition. Defendant suggests that the missing element should have been included in language similar to Paragraph Second of MAI 22.03 (Verdict-Directing — Invitee Injured) which reads: “Second, plaintiff did not know and by using ordinary care could not have known of this condition.”

Where a business invitee sues a landowner for personal injuries arising out of a dangerous condition of the premises, and the defendant’s liability is submitted upon a failure to warn plaintiff of such condition, the plaintiff’s verdict-directing instruction must, by appropriate language, require the jury to find that the plaintiff lacked actual and constructive knowledge of the dangerous condition. Omission of that element renders the instruction fatally defective. Brozovich v. Brozovich, 429 S.W.2d 330, 333[4] (Mo.App.1968); Cupp v. Montgomery, 408 S.W.2d 353, 360[7] (Mo.App.1966); Hoffman v. The Kroger Company, 340 S.W.2d 152, 155[6] (Mo.App.1960); Daggs v. Patsos, 260 S.W.2d 794, 798[5] (Mo.App.1953); Schwartz v. S. S. Kresge Co., 238 Mo.App. 1165, 185 S.W.2d 37, 40[8] (1944).

Both sides have cited Housden v. E. I. Du Pont De Nemours & Co., 321 S.W.2d 430 (Mo.1959) where plaintiff, an employee of a trucking company, assisted in unloading his trailer at defendant’s plant, under the control and supervision of the defendant’s employees. The court there pointed out that the duty owed an independent contractor (or his employee) working on the premises of the contractee (that is, the land occupier) was “like unto the duty owed to an invitee.” The court then said, at p. 434:

“In our case, however, although plaintiff was actually the employee of Tri-State, the evidence shows that defendants undertook to direct and control plaintiff in loading or in assisting in loading the trailer at defendant Du Pont’s plant, and plaintiff had been directed by his employer to submit to the orders and directions of defendant Swift. Consequently, it would seem that plaintiff in this case, with respect to defendants’ duty, stood in the relation of an employee, rather than an invitee, with consequent duty of defendants to exercise ordinary care in providing a reasonably safe place for work, and reasonably safe methods and appliances including adequate help for doing the work assigned plaintiff.” (Emphasis added)

It should be noted that Instruction No. 4 is not based on a theory of breach of defendant’s duty with respect to providing a reasonably safe place for work. The theory submitted is that of failure to warn of a dangerous condition as distinguished from creating that condition or permitting it to exist.

Plaintiff argues, in defense of Instruction No. 4, that Danny was young and inexperienced and that he may not have appreciated the extent of the danger. It is unnecessary to determine whether those contentions are factually sound, or whether a jury would have been justified in making such findings, had Instruction No. 4 so required. Danny’s lack of actual and constructive knowledge of the dangerous condition was a condition precedent to the creation of defendant’s duty to warn of that condition.

“[T]he reported cases leave no room for doubt but that a master has the duty to warn a youthful and inexperienced servant of danger incident to work he is required to do or operation of a machine he is directed to use, where by reason of such youth and inexperience the servant is not aware of and does not appreciate the danger and the risk.” Wilson v. White, 272 S.W.2d 1, 5 (Mo.App.1954). (Authorities cited) (Emphasis added). Similarly in 53 Am.Jur.2d Master and Servant § 166, p. 228 it is said: “The duty of the employer to warn and instruct young and inexperienced employees extends only to those dangers which he in the exercise of ordinary prudence has reason to believe are not known to his employees and will not be discovered by them in time to protect themselves from injury.” (Emphasis added)

An employer is not bound to warn and instruct an employee as to dangers that are obvious and patent. Green v. Sutton, 452 S.W.2d 200, 206 (Mo.1970); Johnson v. Keen, 168 S.W.2d 952 (Mo.App.1943). “ ‘Where a servant knows and appreciates the dangers of his employment, the master is under no obligation to give warning and instructions thereof, and the same holds true where by the exercise of reasonable care the servant could have known of the dangers likely to be encountered by him.” Brooks v. Kansas City Gas Company, 127 S.W.2d 427, 430 (Mo.1939).

“The fact that a servant was aware of the danger from which he suffered harm is not, strictly speaking, a defense, since after a servant acquires knowledge of a danger apart from statute, the master is under no duty to him either to warn him or to provide safe conditions of employment.” Restatement of Agency, Second, Chapter 14, p. 489.

It is arguable that when the jury found that defendant’s failure to warn had a causal connection with Danny’s death it was implicit in that finding that Danny did not have actual knowledge of the information which a warning would have afforded. A failure to impart to him information which he already possessed could not have been a proximate cause of his death, so it was unnecessary to require the jury to make an express finding that he lacked actual knowledge. That argument overlooks the fact that Danny’s constructive knowledge of the dangerous condition, if such he had, eliminates an affirmative duty on the part of defendant to give a warning.

The Missouri authorities previously cited support the view that a duty to warn did not arise unless Danny lacked actual and constructive knowledge of the information to be imparted by the warning. It was necessary for plaintiff to prove absence of such knowledge and to insert that element in his verdict-directing instruction. It was not incumbent upon the defendant to prove the presence of actual or constructive knowledge as an affirmative defense to a failure to warn submission.

Other attacks upon Instruction No. 4 need not be and are not considered. On retrial plaintiff’s counsel should also heed the requirements of the MAI 20.00 series. Plaintiff, by cross-appeal, raised two points which are rendered moot by the foregoing disposition of defendant’s appeal and they need not be considered.

The judgment is reversed and the cause remanded.

All concur.

On Plaintiff’s Motion for Rehearing

In his “Motion for Rehearing or to Modify Opinion” plaintiff seeks to uphold Instruction No. 4 by arguing that it was not necessary for the instruction to include the omitted element because “under the circumstances of this case, there was a presumption that Danny was in the exercise of due care at the time of the occurrence.” Plaintiff asserts that the presumption “supplied the missing element as a matter of law.”

Plaintiff’s position is untenable. If, which need not be decided, Danny was entitled to the presumption of due care on this record, “still such presumption does not supply the place of evidence of defendant’s negligence. ‘It is not a presumption of defendant’s negligence but one of deceased’s freedom from contributory negligence. It does not relieve plaintiff from the burden of proving defendant’s negligence. One presumption cannot be based upon another.’ Menteer v. Scalzo Fruit Co., 240 Mo. 177, 186, 144 S.W. 833, 836.” Katz v. North Kansas City Development Co., 215 Mo.App. 662, 258 S.W. 752, 758[7] (1924). See also Darby v. Henwood, 346 Mo. 1204, 145 S.W.2d 376, 380[7] (1940).

“Courts have disapproved of the use of the presumption of due care as proof of a causal connection between the negligence of a person other than the decedent and the death, or as evidence that the defendant was negligent.” 22 Am.Jur.2d Death § 215, p. 761. To similar effect see 25A C.J.S. Death § 80(1), p. 814.

The presumption under consideration is of no aid to plaintiff in his task of proving the elements of his cause of action against defendant. Neither does it cure a verdict-directing instruction which omits such an element.

Plaintiff’s motion is denied.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.
      Section 537.080 sets forth who may institute actions for wrongful death. § 537.080(2) reads:
      “(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor; or if the surviving parents are unable or decline or refuse to join in the suit, then either parent may bring and maintain the action in his or her name alone, for the use and benefit of both such parents; or”

      . The letter informed Mrs. Bohling that her former husband (plaintiff) had employed attorney Barken to sue the defendant for Danny’s death; that the action had been filed in the Circuit Court of Webster County, that a copy of the petition was enclosed; that the attorney had assumed that if Mrs. Bohling “had wanted to take part in this case, or be named as a plaintiff along with Mr. Crain . . . that I would have heard from you or a lawyer on your behalf by this time.” The letter continued: “However, in order to be certain that there are no misunderstandings, and to be sure that everything is in proper order prior to the trial, I am writing you now so that I can verify your position. Accordingly, I would like to hear from you, or an attorney on your behalf, by April 1, 1974. If I do not hear by that date, I will assume that you are declining to join in the suit. . . .You should not take the April 1st date as having any legal significance since I have selected it arbitrarily so that I can have some assurance of knowing your position substantially before the trial in order to have time to be properly prepared and advise the court. Please understand that I am not undertaking to give you. any legal advice with reference to your rights or position concerning the death of your son in the above case. If you have any questions or if anything is not clear, you should seek your own counsel if you have not already done so. I will be more than happy, of course, to supply him with any information I have.”
      The letter also stated that Mr. Barken thought the case would be tried “sometime in September” 1974. The trial took place in January 1975.

      . The evidence under discussion was received after defendant filed its motion for a directed verdict at the close of plaintiff’s evidence. One of the grounds of that motion was “that the plaintiff is not the proper party to singularly, alone, bring this cause of action.”
      Plaintiffs counsel requested and received leave of court to reopen plaintiffs case. Defendant objected to the reopening but the propriety of the court’s action in permitting reopening was not challenged in defendant’s post-trial motions nor on this appeal.
      “[I]t is well established in Missouri that the trial court may in its discretion allow a case to be reopened to afford a fair hearing of the issues before him. A litigant should not be precluded from offering additional evidence simply because counsel has rested his case. This applies where, as here, the reopening of the case is allowed after a motion to dismiss the action has been filed by the defendant.” Conley v. Dee, 246 S.W.2d 385, 387[6-9] (Mo. App.1952).

      . Rule 55.33(b) is the same as Rule 15(b) of the Federal Rules of Civil Procedure. With respect to the .“implied consent” mentioned in Rule 15(b), a leading authority states: “Consent generally is found when evidence is introduced without objection.” Wright and Miller, Fed. Prac.& Proc., Vol. 6, § 1493, p. 463.

      . “ ‘A party suing [under the wrongful death statute] must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action’.” Wessels v. Gipfel, 522 S.W.2d 653, 654 (Mo.App. 1975); see also State ex rel. Jewish Hospital, Etc. v. Buder, 540 S.W.2d 100, 104[l-5] (Mo.App. 1976).
      Nevertheless the fact is that Missouri courts have construed some wrongful death petitions, technically imperfect, to be sufficient. See, for example, Acton v. Shields, 386 S.W.2d 363, 365[1] (Mo.1965); Slater v. Kansas City Terminal Ry. Co., 271 S.W.2d 581 (Mo.1954); Baird v. Citizens Ry. Co., 146 Mo. 265, 48 S.W. 78 (Mo. 1898); Kern v. United Rys. Co. of St. Louis, 214 Mo.App. 232, 259 S.W. 821 (1924); Jackson v. Lincoln Min. Co., 106 Mo.App. 441, 80 S.W. 727 (1904).
      Even in cases where the appellate court has held the petition to be insufficient, it has ordered reversal and remand rather than outright reversal. Nelms v. Bright, 299 S.W.2d 483 (Mo. banc 1957); Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947 (1943); Lee v. St. Louis Public Service Co., 337 Mo. 1169, 88 S.W.2d 337 (1935); O’Donnell v. Wells, 323 Mo. 1170, 21 S.W.2d 762 (1929); McIntosh, v. Missouri Pacific Ry. Co., 103 Mo. 131, 15 S.W. 80 (1891); Lynch v. St. Louis Public Service Co., 261 S.W.2d 521, 524[5] (Mo.App. 1953).

      . “It is next contended that ‘advice of counsel is a complete bar to this suit since Aetna instituted the previous civil action on advice of counsel.’ This contention is based on certain conclusions elicited from the witness Finnegan on his cross-examination by defendant’s counsel, . . .
      “The first reason why it would have been improper to direct a verdict for defendant on the strength of this showing is that the defense of advice of counsel is affirmative in nature, and one on which the defendant had the burden of proof. . . . Had the same facts been developed by defendant as a part of its own case, and plaintiff had put on no countervailing evidence, no one would contend that defendant would have been entitled to a directed verdict thereon. And so, conversely, the circumstance that testimony tending to support an affirmative defense comes from the lips of a witness called by the plaintiff is not to be treated in any sense as a judicial admission by such plaintiff of the truth of the facts thus shown, but the credibility of that witness still remains for the jury.” Hughes v. Aetna Ins. Co., 261 S.W.2d 942, 951 (Mo. 1953).
      Compare, however, 32A C.J.S. Evidence § 1040(1), p. 768, where it is said: “The rule that a party is bound by the uncontradicted evidence of his witness applies as to testimony elicited from his witness by the adverse party on cross-examination.”

      . This is consistent with defendant’s position in the trial court. At defendant’s request the trial court gave Instruction No. 7 which submitted the defense of statutory employee. That instruction required the jury to find, among other things, that “Defendant and Frazier Brothers, Inc. entered into an agreement whereby Frazier Brothers, Inc.’s employees would be used by defendant.”

      . Instruction No. 7 submitted defendant’s affirmative defense of “statutory employee.”


source: Caselaw Access Project

author: REINHARD, Judge.

license: Public Domain

text:
    Milton H. TUCKER and Percy Tucker et al., etc., Defendant-Third-Party Plaintiff-Appellants, v. Paul RATLEY, Virginia M. Ratley, his wife and Ethel Ratley, Plaintiffs and Third-Party Defendant-Respondents.
    No. 38907.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 13, 1978.

      Charles W. Medley, Farmington, for Tucker.
    Maurice Graham, Fredericktown, for Paul Ratley et al.
   REINHARD, Judge.

Defendant-third party plaintiffs appeal from a judgment of the Circuit Court of St. Francois County quieting title to real estate. The court ruled that a reserved option to repurchase the real estate was void as a violation of the rule against perpetuiti-es and as an unreasonable restraint on alienation.

The land was originally owned by Harry Tucker. On October 10,1945, he contracted to convey the 185 acres in the parcel to Lorenzo Ratley and.his wife Ethel Ratley. 65 acres of this parcel were conveyed to the Ratleys in fee and only the surface rights of the remaining 120 acres were conveyed. As to the 120 acre tract in both the contract for sale and the general warranty deed, Tucker reserved the mineral rights, the rights to ingress and egress, and the right to conduct mining operations. In addition, the grantor reserved the option to repurchase the surface rights in the 120 acre tract with insertion of the following provision:

Subject further to the right of the party of the first part, his heirs and assigns, to repurchase from the parties of the second part, their heirs and assigns, the said surface rights in and to the aforesaid tract of land, designated herein as Tract II, at a price not to exceed Fifty ($50.00) Dollars per acre.

Tucker died June 18,1955, and his estate was administered in the Probate Court of the City of St. Louis. The court’s Order of Final Settlement and Distribution distributed the mineral rights in the 120 acres to the testamentary trustees, defendant-third party plaintiff-appellants here, pursuant to Harry Tucker’s will. No mention was made of the option to repurchase.

In April, 1968, Lorenzo and Ethel Ratley conveyed their surface rights to 40 acres of the 120 acre tract to their son Paul and his wife Virginia. Thereafter, Paul and Virginia Ratley built a home on this property, the value of which has been stipulated by the parties to be $35,000.00. They then brought this suit to quiet title to the surface rights. The testamentary trustees filed a counterclaim requesting that the court enforce the repurchase rights, not only as to Paul and Virginia Ratley’s 40 acres, but also over the remaining 80 acres held by Lorenzo (now deceased) and Ethel Ratley, who were named as third party defendants. In the alternative, defendant-third party plaintiffs’ counterclaim asked for damages or restitution. The stipulated value of the land in question is $450.00 per acre.

The case was submitted to the court on stipulation of facts. The trial court held that the reserved repurchased rights constituted an option that was void and unenforceable as a violation of the rule against perpetuities and as an unreasonable restraint upon alienation.

The rule against perpetuities provides that “no interest within its scope is good, unless it must vest, if at all, not later than 21 years after some life or lives in being at creation of the interest, plus the period of gestation.” St. Louis Union Trust Co. v. Kelley, 199 S.W.2d 344 (Mo.1947). Any future or contingent interest that may not, by its terms, vest within this period is void ab initio. The rule does not apply to a vested interest, however remote in time it may come into possession. St. Louis Union Trust Co. v. Bassett, 85 S.W.2d 569, 577 (Mo.1935). In Missouri the rule is a “possibilities” test, and not an “actualities” test; that is, in determining the validity of any future interest, the court cannot take account of subsequent actual events which would have vested an otherwise invalid interest. Nelson v. Mercantile Trust Co., 335 S.W.2d 167,172 (Mo.1960). That appellants attempted to exercise this option, ostensibly within the period of the rule, is therefore irrelevant.

Although we can find no Missouri case precisely in point, the prevailing view holds that an option to purchase real property is subject to application of the rule against perpetuities. 61 Am.Jur.2d, Perpetuities and Restraints on Alienation, § 50. Section 394 of the Restatement of the Law of Property provides:

Subject to exceptions stated in §§ 373 (destructible interest), 397 (charity) and 400 (unissued shares of a corporation), the reservation of an option to repurchase the whole or any part of the interest conveyed, made in favor of the conveyor, is invalid, because of the rule against perpe-tuities, when, under the language and circumstances of the reservation, such option
(a) may continue for a period longer than the maximum period described in § 374 [rule against perpetuities]; and
(b) would create an interest in land, or in some unique thing other than land, but for the rule against perpetuities.

See also Simes & Smith, The Law of Future Interests, 2d Ed., § 1244, p. 159.

In Missouri, it has been held that contracts, involving real property, which confer a right which may be enforced by specific performance are subject to the rule against perpetuities and to the rule against restraints on alienation. Kershner v. Hurlburt, 277 S.W.2d 619, 623 (Mo.1955).

Kershner is one of a series of Missouri cases in which the so-called right of preemption purchase was held subject to the restrictions of the rule against perpetuities. A right of preemptive purchase differs from an option to purchase in that ordinarily it gives a prospective purchaser the right to buy ahead of or before all others should the seller decide to sell the property. An option to purchase gives the purchaser a right to buy whether or not the seller wishes to sell. The latter clearly is a more substantial restraint on alienation inasmuch as it wholly eliminates a property owner’s prerogative to keep possession in the event the optioner chooses to exercise the right to purchase, whereas the preemption option arises only if the owner desires to sell.

Provisions creating a right of preemptive purchase have been held to be in violation of the rule against perpetuities and/or the rule against restraints on alienation in numerous Missouri cases. See, e. g., Kershner v. Hurlburt, supra; Davies v. McDowell, 549 S.W.2d 619 (Mo.App.1977); Missouri State Highway Com’n. v. Stone, 311 S.W.2d 588 (Mo.App.1958). There is no basis for distinguishing options to repurchase from preemptive purchase rights by according them different scrutiny or by removing them altogether from the restrictions governing preemptive purchase rights.

Courts in other jurisdictions have considered provisions reserving an option to purchase surface rights extending to an owner of the underlying mineral rights. Although they are susceptible of varying interpretations, a reading of all the cases suggests a single general principle: a bare option to purchase land which is unlimited as to time is subject to the rule against perpetuities, but an option which is appurtenant to a mineral estate and is limited to the necessary and reasonable use of the overlying surface estate for the exercise of mineral rights is a presently vested interest and free from application of the rule. Cf. Quarto Mining Co. v. Litman, 42 Ohio St.2d 73, 326 N.E.2d 676, 683 (1975).

The grantor here ensured the use and enjoyment of the reserved mineral estate by specifically incorporating in the reservation clause the right of ingress and egress and the right to conduct surface mining operations. Thus the option itself was not incidental to the exercise by the grantor of his right to explore for and remove the minerals; it was exercisable whether or not acquisition of the surface estate was incidental or essential to the conduct of mining operations.

In Missouri, “[t]he owner of land containing minerals may segregate the surface rights from the underlying minerals by a conveyance in writing so that there is a complete severance of title and separate estates are created. (Citations omitted). This may be done by a conveyance of the land with an express reservation of the mines and minerals, (citations omitted) and the separate estate in the mines and minerals thus created in the grantor is the same as though there had been an express grant thereof . . . Groves v. Terrace Mining Company, 340 S.W.2d 708, 710 (Mo.1960). Just such separate estates were created here. The grantor deeded away the surface rights. In reserving the subsurface mineral rights, the grantor created as to himself a vested interest in the separate mineral estate. The option created a contingent interest in the surface estate, subject to vesting upon exercise of the option. Middleton v. Western Coal and Mining Co., 241 F.Supp. 407 (W.D.Ark.1965). There was no time limit on the contingency and therefore it violates the Missouri rule against perpetuities.

Section 442.555, RSMo. 1969, permits reformation of a contract containing a provision violative of the rule against perpetu-ities if such provision, “is manifestly so essential to the dispositive scheme of the grantor, . that it is inferable that he would not wish the limitations or provisions which do not in themselves violate the rule against perpetuities to stand alone.” The statute, by its express terms, may not be applied retroactively to the transaction here in question. Appellants argue, however, that in accordance with the “liberalizing” spirit of § 442.555, this court should recognize as an exception to the rule the reservation of a right to repurchase surface rights created contemporaneously with a reservation of the underlying mineral rights. We are not permitted by law, nor inclined as a matter of public policy, to extend the reach of the statute in order to arrive at the conclusion urged by appellants.

Having concluded that the option provision is void as a violation of the rule against perpetuities, we need not determine whether it also constitutes an unreasonable restraint on alienation.

Appellants argue that, notwithstanding the denial of specific performance, they are entitled to some relief, namely restitution or damages. We cannot agree. To at once declare the option invalid under the rule, yet allow recovery of damages for the failure of the person subject to the option to conform to the agreement, would tend to compel substantial performance of the contract. Effectuation of the purpose of the rule against perpetuities requires that no recovery of damages be permitted in a case such as this. Restatement of Property, § 393, comment h, p. 2320; Simes &. Smith, Future Interests, 2d Ed., § 1244, p. 161.

Judgment of trial court affirmed.

STEWART, P. J., and JOSEPH J. SI-MEONE, Special Judge, Chief Judge at time of submission, concur.

      . Although appellants claim the option granted a vested interest in the surface rights, they admit that neither they nor Harry Tucker has paid any real estate taxes on this 120 acre tract since the original conveyance in 1945.

      . Kershner v. Hurlburt, 277 S.W.2d 619 (Mo. 1955), noted the distinction between the rule against perpetuities and the rule against restraints on alienation. “The rule against perpe-tuities fixes the time within which a future interest must vest, while the rule against restraints on alienation is to prevent the inalienability of present or future vested interests.” Id. at 623.

      . See, e. g., Barton v. Thaw, 246 Pa. 348, 92 A. 312 (1914); Middleton v. Western Coal and Mining Co., 241 F.Supp. 407 (W.D.Ark.1965); Rocky Mountain Fuel Co. v. HeBin, 148 Colo. 415, 366 P.2d 577 (Colo.1961); Buck v. Walker, 115 Minn. 239, 132 N.W. 205 (1911); Threkeld v. Inglett, 289 Ill. 90, 124 N.E. 368 (1919).

      . It would appear, though we do not so hold, that because of the absence of a time limitation and the inclusion of a stipulated price, the provision imposes a substantial restraint on alienation. See Kershner v. Hurlburt, 277 S.W.2d 619 (Mo. 1955); Restatement of Property, § 413.


author: McMILLIAN, Judge.

text:
    Johnnie SIMMS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 39474.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 13, 1978.

      Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jeffrey W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Johnnie Simms appeals from a judgment entered upon a jury verdict in the circuit court of the City of St. Louis finding him guilty of robbery in the first degree, § 560.120 RSMo 1969, and armed criminal action, § 559.225 RSMo Supp.1976. The trial court sentenced appellant to consecutive terms of twelve (12) years imprisonment for the robbery and three (3) years for armed criminal action. For reversal appellant argues the trial court erred by: (1) denying appellant’s motion to suppress the identification testimony and (2) giving to the jury MAI-CR Instruction 2.70. For the reasons discussed below, we disagree and, accordingly, affirm the judgment.

Due to the issues raised on appeal, a brief recitation of the pertinent facts is necessary. On August 31, 1976, at approximately 8:55 p. m., a man and a woman approached the box office of Loew’s State Theatre. The man pointed a pistol at the ticket seller, Mrs. Dorothy Miller, and demanded money. Mrs. Miller handed the man the money. The man fled the scene on foot. Mrs. Miller activated the alarm button and the assistant manager and a security guard responded. Mrs. Miller informed them that a man and a woman had just robbed her. Both men observed appellant running west on Washington Avenue with money and a gun in his hand and chased him. As appellant turned the corner and headed north on Eighth Street, police officer Walter Jones apprehended and arrested him. The money and a gun were later recovered from underneath a car parked in the area of appellant’s arrest.

The police officer returned appellant to the scene of the crime. Not more than ten minutes had elapsed since the time of the robbery. Appellant was handcuffed and seated in the back seat of a patrol car. Ms. Miller, while standing in front of the ticket office, identified appellant as the man who had robbed her. Officer Jones then took Ms. Miller into the theatre and took her statement. Later, during the trial, Ms. Miller made an in-court identification of appellant as the robber. Appellant moved to suppress the identification testimony. After a preliminary hearing on the motion to suppress, the trial court denied the motion.

Appellant first argues the trial court erred in denying appellant’s motion to suppress identification testimony because the procedures used at the show-up were imper-missibly suggestive and conducive to irreparable mistaken identification. Appellant contends his identification was the product of improper police procedures — appellant was displayed to the victim in handcuffs sitting in the back of a patrol car. In essence, appellant objects to the use of a show-up identification. It is, however, well settled in Missouri that “it is not improper for the police to immediately return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before.” State v. Maxwell, 502 S.W.2d 382, 389 (Mo.App.1973); see also State v. Hamblin, 448 S.W.2d 603, 611 (Mo.1970); State v. Madison, 537 S.W.2d 563, 564 (Mo.App.1976). For a discussion of the public policy reasons in support of this position see State v. Hamblin, supra, at 609-10, citing Russell v. United States, 133 U.S.App.D.C. 77, 81, 408 F.2d 1280, 1284 (1969). Absent the use of impermissibly suggestive procedures, show-up confrontations and identifications are admissible; the reliability of the identification is a matter for the jury. See, e. g., State v. Dodson, 491 S.W.2d 334, 338 (Mo. banc 1973); State v. Townes, 461 S.W.2d 761, 763 (Mo.1970), cert, den., 407 U.S. 909, 92 S.Ct. 2445, 32 L.Ed.2d 683 (1972).

In evaluating the suggestiveness of a particular confrontation and the likelihood of misidentification, we look to factors such as the opportunity of the witness to view the accused at the time of the alleged crime, the accuracy of the witness’s prior description of the accused, the certainty of the witness at the confrontation, the length of time between the crime and the confrontation, and the need for police to determine at the earliest opportunity whether the person suspected is in fact the person sought.

State v. Hudson, 508 S.W.2d 707, 710 (Mo.App.1974); see also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In the present case, appellant was returned to the scene of the crime within ten minutes, immediately after he was arrested. Given the particular facts of this case, there was a real need to determine immediately whether the person apprehended was in fact the person sought. Ms. Miller had ample time to observe appellant and made a definite identification. As noted by appellant, Ms. Miller did not give a description of the robber to police, the procedure used in State v. McDonald, 527 S.W.2d 46 (Mo.App.1975). In the present case we believe the circumstances of appellant’s apprehension and arrest, which occurred almost immediately after the crime was committed and before Ms. Miller could give a description to anyone, more than compensated for the lack of a description. Finally, the procedure used was not unduly suggestive because appellant was in handcuffs sitting in the back of a patrol car when viewed by Ms. Miller. For example, in State v. Dodson, supra, at 337-38, the court found no due process violation in a show-up confrontation where the suspect was viewed in handcuffs and sitting in a police car within thirty minutes of the crime. Similarly, in State v. Smith, 465 S.W.2d 482,483 (Mo.1971), the court permitted a show-up confrontation where the suspects were viewed seated in the back of a paddy wagon.

We conclude that the procedure used in the show-up confrontation in the present case was neither impermissibly suggestive nor unfair. Moreover, even if the show-up confrontation had been improperly conducted, the opportunity of Ms. Miller to observe appellant for several minutes in the well-lit box office area provided a sufficient independent basis to support the in-court identification. E. g., State v. Ross, 502 S.W.2d 241, 245 (Mo.1973); State v. McDonald, supra, at 49; State v. Davis, 507 S.W.2d 32, (Mo.App.1974).

Appellant’s second argument is that the trial court erred in giving to the jury Instruction No. 7, MAI-CR 2.70. Appellant argues that because the charges of robbery in the first degree and armed criminal action were necessarily connected, specifically that the charge of armed criminal action was dependent upon first finding appellant guilty of the robbery, the trial court should have amended the instruction. Appellant contends this failure to amend confused and misled the jury because the instruction did not reflect the true nature of the information, that the armed criminal action charge was dependent upon the finding of the robbery charge.

It is clear in Missouri that any trial error concerning jury instructions is to be deemed prejudicial unless the contrary clearly appears. See, e. g., State v. Billingsley, 534 S.W.2d 484, 485 (Mo.App.1975). The prejudicial effect must, however, be judicially determined. E. g., State v. Boyington, 544 S.W.2d 300, 303 (Mo.App.1976). When determining whether an instruction or the omission of an instruction was prejudicial, all of the given instructions must be read and considered together. See State v. Sallee, 436 S.W.2d 246, 251 (Mo.1969). In the present case, even were we to concede that some confusion may have resulted from the giving of MAI-CR 2.70, we conclude that no prejudice in fact resulted.

Both charges were connected and dependent upon each other. To be found guilty of armed criminal action pursuant to § 559.225 RSMo Supp.1976, necessitated, under the present facts, that appellant first be found guilty or robbery in the first degree, a felony, and that this felony was committed with the use of a dangerous or deadly weapon. The trial court recognized this connection, however, and so instructed the jury. The trial court instructed the jury in Instruction No. 5 as to the charge of robbery in the first degree. The trial court also gave Instruction No. 6 as to the charge of armed criminal action. Reading all of the instructions together, we believe the instructions adequately instructed the jury as to the necessary elements of each offense, the possible verdicts, and the necessity of considering the evidence separately in relation to each offense charged and that no prejudice to appellant resulted from the failure of the trial court to amend MAI-CR 2.70 in the present case.

Accordingly, judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . Cl State v. Hardin, 555 S.W.2d 27, 29. (Mo. banc 1977) (one and a half minutes); State v. Patterson, 465 S.W.2d 599, 601 (Mo.1971) (two minutes).

      . Instruction No. 7 is MAI-CR 2.70—
      The defendant is charged with a separate offense in each Count submitted to you. Each offense and the evidence and law applicable to it should be considered separately. Any evidence which was or has been limited to one of the offenses charged or one purpose should not be considered by you as to another pífense charged or for any other purpose.
      You may find the defendant guilty or not guilty of any or all of the Counts submitted against him.
      You should render a separate verdict as to each count submitted against the defendant.
      MAI-CR 2.70 is a mandatory instruction which must be given when multiple counts are involved so that the jury will give separate consideration to each offense. See, e. g., State v. Boyington, 544 S.W.2d 300, 303 (Mo.App. 1976); .State v. Johnson, 537 S.W.2d 816, 819-20 (Mo.App. 1976); see also Rule 20.02(e), VAMR; MAI-CR 2.70, Notes on Use No. 1.

      .Instruction No. 6:
      As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
      First, that the defendant committed the crime of robbery in the first degree, a felony, as defined heretofore in Instruction No. 5, and
      Second, that the perpetration of the aforesaid felony was done through the aid or use of a weapon, to-wit: a gun, held by the defendant,
      then you will find the defendant guilty under Count II of armed criminal action.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty under Count II of that offense.
      (Not in MAI-CR; Modification of MAI-CR 2.12).


author: STEPHAN, Judge.

text:
    Ronald L. MORICE, Appellant, v. Gus O. NATIONS et al., Comprising the Board of Police Commissioners of St. Louis County, Missouri, Respondents.
    No. 39268.
    Missouri Court of Appeals, St. Louis District, Division Two.
    June 20, 1978.

      C. John Pleban, London, Greenberg & Fleming, St. Louis, for appellant.
    Thomas W. Wehrle, St. Louis County Counselor, Dennis C. Affolter, Asst. County Counselor, Clayton, for respondents.
   STEPHAN, Judge.

Ronald L. Morice appeals from a judgment of the circuit court which affirmed his dismissal from the St. Louis County Police Department.

On June 17, 1976, Superintendent of Police Gilbert Kleinknecht notified Mor-ice of his dismissal and gave him a letter setting forth the reasons therefor. The letter advised Morice of his right to appeal the superintendent’s decision to the Board of Police Commissioners, and Morice availed himself of that right. A hearing was held before the board on September 8, 1976, which resulted in findings that Morice was guilty of insubordinate conduct to a superi- or officer and of using abusive language toward a member of the public, as charged in the letter. Morice was found not guilty by the board of a third charge, that he had used unreasonable force in dealing with a prisoner. The board “affirmed” Morice’s dismissal.

Appellant contends that the findings of the board were not supported by competent and substantial evidence, that the board shifted the burden of proof to him, and that the board exceeded its jurisdiction when it affirmed the dismissal after finding appellant not guilty of one of the three charges. For reasons hereinafter stated, we hold these contentions to be without merit and affirm.

A reading of the transcript of the hearing before the board shows the following facts: On November 10, 1975, Morice, a patrolman, was assigned to “C” platoon of the St. Louis County first precinct. His regular tour of duty on that day was to end at 11:00 p. m. His supervisor was Sergeant Joseph M. Kennedy, who testified that at about 11:20 p. m. he was in the process of completing some paper work and talking to the supervisor of the 11:00 p. m. to 7:00 a. m. watch. Kennedy heard some “commotion” and “loud shouting” and went to investigate. He noted that the door to an office, “the west sergeant’s office”, was closed. Upon opening the door, Kennedy observed that the room was occupied by Morice and a prisoner, James Green. Green was seated in a chair with his hands handcuffed behind him. Morice was standing over Green, grasping him with one hand by his neck or clothing in the vicinity of the neck. Mor-ice’s other hand was clenched in a fist and drawn back as if he were about to strike Green. Green appeared frightened. Mor-ice was saying to Green, “You lied to me, you ignorant mother fucker, you lied to me.” Kennedy told Morice to “Let him alone.” After Kennedy repeated the directive several times, Morice released his hold on the prisoner and stepped back a foot or so, and it appeared to Kennedy that the situation was under control. At that instant, the door was slammed in Kennedy’s face. When Kennedy tried to open the door, he encountered resistance from the other side and he forced the door open with his shoulder. Morice again had Green by the collar and was standing over him with his fist drawn back. Kennedy said to Mor-ice, “Let him alone.” Morice did not respond but simply looked at Kennedy. Kennedy then said, “Put him in the hold over.” Morice continued to look at Kennedy; Kennedy repeated the directive several times, each time with increasing vociference and vehemence. Morice responded, “If you want to put the mother fucker in the hold over, you put him in the hold over.” Kennedy said, “No, you do it.” Morice finally took the prisoner down the hall toward the holdover cell, shoving him as he went, in spite of Kennedy’s admonition not to do so. Kennedy’s testimony concerning these events was consistent with and corroborated by that of the oncoming watch supervisor, Sergeant Donal Held, and Patrolman Mark Roman, both of whom were in the immediate vicinity of the doorway to the west sergeant’s room. Roman also added that, during the exchange between Kennedy and Morice, the latter referred to the prisoner, who is black, as a “nigger”. Mor-ice, who was present at the hearing, did not testify.

At the outset of our examination of appellant’s first point, that the board’s findings were not supported by substantial and competent evidence, we review briefly the nature of our task in this regard. In Hanebrink v. Parker, 506 S.W.2d 455, 457 (Mo.App.1974), this court said:

“Standards for judicial review of an action of an administrative agency are set out in: Missouri Constitution, Article 5, § 22, V.A.M.S.; Rule 100.07(b), V.A.M.R.; § 536.140(2), RSMo 1969, V.A.M.S. In cases where a hearing is required by law, the reviewing court must determine whether a decision of any administrative body is “supported by competent and substantial evidence upon the whole record”. The term ‘substantial evidence’ both implies and comprehends competent evidence and is evidence which, if believed, would have a probative force upon the issues. State ex rel. Bice v. Public Service Commission, 359 Mo. 109, 220 S.W.2d 61, 64[3] (banc 1949). And an appellate court, upon review of a case, after a determination by an administrative board, ‘as a matter of law passes upon the matter of substance and not of credibility. In other words an appellate court may say that particular evidence is substantial if the triers of the facts believed it to be true.’ State ex rel. Rice v. Public Service Commission, supra, at 65[7].”

Measured against the foregoing, we think the evidence before the board fully supported the findings made. It could not be said that the decision was clearly contrary to the overwhelming weight of the evidence, Wood v. Wagner Electric Corporation, 197 S.W.2d 647 (Mo. banc 1946), for there was no evidence to the contrary. Yet, appellant through resourceful counsel argues that the evidence does not meet the standard for reasons which we touch on here. Appellant asserts that there was not competent and substantial evidence to support the finding that he had been insubordinate to Sergeant Kennedy in failing to obey the latter’s orders, because Kennedy did not identify his words as direct orders and that it was improper to admit Superintendent Kleinknecht’s opinion testimony that such statements as “Put the prisoner in holdover” constituted a direct order. We need not consider whether the superintendent was competent to express such an opinion for the reason that the record is replete with other compelling evidence from which the board could have inferred that Kennedy’s directives to Morice constituted direct orders. Considering the totality of the facts surrounding the occurrence — a sergeant of police talking to an obviously angry and excited patrolman in a police station during the interrogation and in the presence of a manacled prisoner whom the patrolman appears to be threatening with imminent violence — we have no difficulty in holding that the board could reasonably find that the sergeant’s words were direct orders. It was not necessary for Kennedy to preface his commands by such words as “I order you . . ” or “This is an order .” Under the circumstances, such phrases would be redundancies.

Similarly, we find devoid of merit appellant’s claim that there was not substantial evidence to support the finding that Morice employed a “racial slur” in referring to Green. Appellant would have us so hold because only Patrolman Roman testified that Morice used the word “nigger”. While Kennedy and Held did not testify that Morice used the word, neither did they testify that he did not use it. Roman’s testimony was credible, was believed by the board, and was therefore “substantial” evidence. Hanebrink v. Parker, supra, 457.

Finally, in attacking the sufficiency of the evidence, appellant claims the superintendent’s case before the board must necessarily fail because there was no “in-court” identification. That is to say, none of the witnesses testified that the Ronald L. Mor-ice who attended the board hearing was the same Ronald L. Morice who was involved with Sergeant Kennedy in the events which gave rise to this case. This argument is also without merit.

When appellant’s counsel moved for dismissal of the charges at the close of the superintendent’s case and argued lack of “in-eourt” identification, the chairman stated:

“It’s very obvious to me, and the testimony, the officer’s — do you want to hear me out? The officers who were testifying about the incident were referring to him and nodding towards him, obviously I think there was very obvious identity. I don’t have any problem with that at all. As far as I’m concerned that’s a sham, Mr. Pleban; there’s no validity to that complaint at all.”

Having examined the entire transcript of the hearing, we agree with the chairman’s characterization of the argument. The sole purpose of “in-court” identification is to connect the person identified with the acts or conduct which gave rise to the litigation. That appellant was the person to whom the charges were directed and about whom the testimony was elicited at the hearing was a fact effectively acknowledged by the parties and so accepted and understood by the board.

Appellant’s second point is that the trial court erred in affirming the board’s decision because the board shifted the burden of proof. This contention is based on the first paragraph of the board’s conclusions of law which states:

“When a supervisory Officer, during the course of duty, directs a subordinate to do or refrain from doing something, the direction is an order, absent proof of any circumstances showing it was not intended as such. There was no proof of such circumstances in the colloquy between appellant and Sgt. Kennedy and we conclude that appellant was insubordinate toward Sgt. Kennedy in failing to obey Sgt. Kennedy’s order to leave Green alone, in failing promptly to obey Sgt. Kennedy’s order to put Green in the holdover, and in telling Sgt. Kennedy to put Green there himself, all in violation of Article 12.2 above.”

We do not agree that the foregoing indicates that the board was imposing on appellant the burden of proving his innocence, as was the case in Heidebur v. Parker, 505 S.W.2d 440 (Mo.App.1974), upon which appellant relies. Rather, the “conclusion” is an accurate articulation of the relationship between a superior officer and those under his command: a simple imperative sentence spoken to a subordinate relating to the latter’s duties, under such circumstances as are here presented, is presumptively an order. The presumption is, of course, rebuttable. As was said in Heidebur, supra, 444, “the Superintendent has the burden of proof and should have been required to put on his case first; and, thereafter, the defendant, if the Superintendent has made a prima facie case, be required to go further with his evidence.”

Appellant’s final point is that, because the board found him not guilty of one of the three charges, it exceeded its jurisdiction when it affirmed the superintendent’s decision to dismiss him. In appellant’s view, when the board found him guilty of only two of the charges, it should have either directed the superintendent to enter a new order or remanded the case to the superintendent for reassessment of the disciplinary action. With this contention we disagree.

The St. Louis County Charter provides “The board of police commissioners shall be in charge of the department of police.” § 4.270.1. The board appoints and removes the superintendent. § 4.270.7. Although the superintendent in the first instance orders disciplinary action against personnel of the department, “All cases of disciplinary action shall be subject to each employee’s right of appeal to the board of police commissioners, whose findings and orders shall be final and conclusive.” § 4.280. From the foregoing, we believe that the framers of the charter intended that, when an appeal from a disciplinary order of the superintendent was taken, the board would have the broadest possible discretion, within the parameters of the charges, to make its own findings and to enter whatever disciplinary orders it deemed appropriate. To adopt appellant’s view would be to ignore the obvious fact that the superintendent, although he is the highest ranking police officer, is a subordinate of the board. We believe the charter provision relating to the finality and conclusiveness of the board’s “findings and orders” mandates our ruling that the board’s action in this case was proper.

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.

      . Referred to as an “appeal” by both the St. Louis County Charter, § 4.280, and the Police Manual of Conduct and Discipline, Art. 5, the procedure is in fact a “contested case” as that term is used in § 536.010, RSMo 1969, and the letter serves the purpose of the notice contemplated by succeeding sections. The burden of proof at the board hearing was on the superintendent. Heidebur v. Parker, 505 S.W.2d 440 (Mo.App.1974); Moore v. Damos, 489 S.W.2d 465, 468 (Mo.App.1972).

      . The sophistry of appellant’s argument on this issue is underscored by the fact that he filed three pre-hearing motions, one of which was to discover the evidence developed by the internal affairs investigation relevant to the charges against him. This motion was resolved to the satisfaction of his counsel prior to the commencement of the hearing. Appellant presented evidence and argued the other two motions at the hearing, thus conceding that he is the person who was named as the subject of the charges. Moreover, in cases involving the Second Offender Act, § 556.280, RSMo et seq., it has consistently been held that identity of name of a criminal defendant and a person shown by documentary evidence to have a pri- or conviction is prima facie proof that such persons are one and the same. State v. Shumate, 516 S.W.2d 297, 300 (Mo.App.1974); State v. Harris, 452 S.W.2d 577, 578 (Mo.1970). In view of the overwhelmingly conclusive circumstances here present, the board was justified in concluding that the Patrolman Morice about whom they heard testimony was the same person present before them at the time.