text:
    Howard VOSS and Juanita Voss, Respondents, v. Lucas C. WALL and Gwendolyn Wall, Appellants.
    No. 38099.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Jan. 17, 1978.

      Donald Rhodes, Bloomfield, for appellants.
    Hux & Green, Jim S. Green, Sikeston, for respondents.
   ALDEN A. STOCKARD, Special Judge.

In this case, tried before the court without a jury, the defendants have appealed from the judgment in favor of plaintiffs on their petition and against defendants on their counterclaim. We affirm.

Plaintiffs leased 891 acres of farmland from defendants for the year 1972. By the terms of the agreement, plaintiffs were to pay to defendants as rent “one-third of the proceeds received from all crops grown on said farm during period of said lease,” and defendants were to “pay one-third of the costs of all fertilizers and chemicals used in the production of the crops * * *.” In their petition plaintiffs alleged that defendants owed them $2,561.78 as their share of the expenses incurred during 1973 which they refused to pay.

Defendants filed a general denial to plaintiffs’ petition. They also filed a counterclaim in four counts. In Count I defendants alleged that “in the year of 1972” defendants “leased to plaintiffs” certain land, and that “by the terms of said farm lease” plaintiffs “were to deliver to defendants one-third of the crops harvested from the [farm] to the Advance MFA Grain Elevator or any other place designated by the defendants, with any hauling expense beyond Advance to be at the defendants’ expense,” and that they made arrangements to have their one-third share of the soybeans stored in storage bins and so notified plaintiffs, but that plaintiffs refused to take defendants’ share of soybeans to those storage bins. They also alleged that plaintiffs hauled some of the beans from the leased premises without having them weighed at Advance and refused to account for them. Defendants prayed for an accounting, and that they recover the loss sustained by them because all the beans were not weighed at Advance and because plaintiffs’ share was not stored.

By Count II defendants sought damages in the amount of $10,000 because during the year 1972 plaintiffs permitted noxious weeds to grow and did not operate the farm in an efficient and husband-like manner.

By Count III defendants sought “double the yearly rental value” from plaintiffs on the theory that they had given timely notice to terminate the lease at the end of 1972, and plaintiffs held over during 1973.

By Count IV defendants alleged that while wrongfully holding over, plaintiffs planted, cultivated, and harvested 80 acres of soybeans and 620 acres of milo, and that the soybeans were sold to the MFA Exchange at Advance, and defendants have not received payment for the soybeans or any part thereof. Defendants also alleged that more soybeans and milo were harvested than plaintiff had reported, and they sought an accounting to determine the amount of soybeans and milo harvested and sold, and the price received.

Attached to a pleading of each party was an unsigned copy of what each claimed to have been the terms of the lease for 1972. The copies are identical except the one attached to plaintiffs’ pleading provided for automatic renewal of the lease from year to year unless either party gave written notice to the other that it be terminated “on or before the 1st day of October * * *” while the date in the copy attached to defendants’ pleading was “the 30th day of October.”

On October 25, 1972, defendants mailed to plaintiffs a written notice, which was received by plaintiffs, that the “lease shall be terminated * * * and will not be renewed for a subsequent year, 1973, or year thereafter.” Additional facts will be set forth in the discussion of the issues.

The trial court entered findings of fact that (1) the parties entered into a written farm lease for the year 1972, and that the lease was the one attached to plaintiffs’ pleading which provided that the lease should run from year to year unless written notice of termination was given before October 1; (2) defendants’ notice of termination was given on October 25, 1972, which was not timely to terminate the lease for 1973, but operated only to prevent the lease from being effective for the year 1974 and thereafter; (3) defendants are indebted to plaintiffs in the amount of $2,561.78 for their share, according to the terms of the lease, for the cost of the fertilizers and chemicals used in 1973 for the production of the crops on the land; (4) the parties settled between themselves for all income and expenses for the year 1972, and neither party is entitled to recover from the other for that year; (5) plaintiffs farmed the property according to the lease agreement and did not allow noxious weeds to grow and defendants suffered no damage in that respect; (There is no point on this appeal pertaining to this finding or to Count II of the counterclaim. No further mention of either is necessary); (6) plaintiffs sold all the milo grown on the farm in 1973 to Monarch Feed Mill at Dexter and the proceeds were properly divided between the parties; and (7) the parties have deposited with the clerk of the court a check from MFA Exchange in the amount of $1,930.72 which represents the proceeds from the sale of all soybeans grown by plaintiffs in 1973 on defendants’ land, and defendants’ share-is $643.58. The court then off-set the $643.58 against the $2,561.78 and entered a net judgment against defendants under plaintiffs’ petition for $1,918.20.

The first two points of appellants turn on the issues of whether there was a valid written lease for the year 1972 which provided for an earlier notice of termination than October 25, 1972, and if so, whether the notice of termination that was given was timely.

Appellants’ first point is directed to the judgment on plaintiffs’ petition, and they assert the trial court erred in that plaintiffs “were not in lawful possession of [defendants’] land during the year 1973” because defendant had given “timely written notice terminating the [plaintiffs’] tenancy and there was no agreement between the parties for [plaintiffs] to lease [defendants’] land for the year 1973.”

The argument under this point ignores the express finding of the trial court that the “parties entered into a written farm lease” for the year 1972 which would automatically be renewed unless a written notice of termination was given before October 1. Nothing is advanced as to why that finding should not be controlling of this point. They only urge that after having received written notice “more than 60 days before the end of the year to surrender possession * * * prior to January 1, 1973 * * * the [plaintiffs] chose to hold over and wrongfully and unlawfully occupy and cultivate [defendants’] farms during the year 1973.” They then assert that “having established there was no agreement between the parties for [plaintiffs] to remain * * * it necessarily follows that there could be no agreement in which [defendants] were to pay any portion or had any legal obligation to pay any portion of the expenses * * They cite only Millhouse v. Drainage District No. 48 of Dunklin County, 304 S.W.2d 54 (Mo.App.1957), but that ease holds only that a tenant who holds over does not have an interest for which compensation must be paid when the property is taken or damaged for public use. The whole argument begs the question of whether plaintiffs were holding over, or whether the lease for 1972 was automatically renewed for 1973 because timely notice of termination was not given. The burden to establish that the trial court’s finding was erroneous was on the defendants and they have failed to do so.

By their Point II appellants assert that the trial court erred in entering judgment for plaintiffs on Count III of the counterclaim because (a) plaintiffs’ tenancy “for the year 1972 had been terminated by [defendants’] written notice which [plaintiffs] received more than 60 days before December 31, 1972; ” and (b) the agreement pertaining to the year 1972 was verbal, there was no “written agreement abrogating Section 441.080,” RSMo 1969, and the parties had “not agreed to nor even discussed the possibility of [plaintiffs] occupying [defendants’] land during the year of 1973,” and therefore defendants were entitled “to double the annual fair rental value of their lands for the year 1973.”

As with their first point, defendants again ignore the express finding of the trial court that the “parties entered into a written farm lease” for the year 1972 which would automatically be renewed unless a written notice of termination was given before October 1. The only possible recognition of this finding is the bare assertion in the point that “The evidence * * * did not support the trial judge’s finding against [defendants] on Count III of their counterclaim.”

In argument defendants quote testimony of Mr. Voss that he did not know if his wife signed the lease for 1972, that he did not “reckon we ever signed it,” that he did not know if he signed the lease because “there is too many written out,” and that he did not have a signed copy. However, Mr. Wall testified that he received a copy of a lease from plaintiffs that was signed by them, and that he and his wife then signed the lease and returned it to plaintiffs. He further stated that the document that had the four signatures was the one that had the provision that notice of termination had to be given by October 30. However, before the end of 1972 defendants filed suit against plaintiffs. In the petition in that case it was alleged that they “had leased” to plaintiffs the land in question for a term of one year “all as set forth in the attached Exhibit ‘A’, which Exhibit ‘A’ is incorporated into this petition as fully as if set forth in length herein.” The exhibit attached to that petition was a copy of a lease in which there was a requirement that notice of termination be given before October 1. Defendants’ attorney who filed that suit testified that he obtained the unsigned copy of the lease from plaintiffs’ attorney who stated that the parties had the signed copy. Toward the end of the trial the court asked, “What is the defendants’ position? Is it their position that there is a lease or there is not a lease?” After some discussion, defendants’ counsel stated: “Our position is there is a lease in existence for ’72,” but that “there is no written lease for ’73.” The court declared a recess so defendants could talk to counsel “and find out what your position is.” After the recess defendants announced that “our position is that there was no written lease for the year ’72 or ’73.”

It is evident that there is conflicting evidence as to whether there was a written lease, and if so, what date was therein provided for the notice of termination. Our review is pursuant to Rule 73.01(3), and that has been construed to mean the decree of the trial court “will be sustained by the appellate 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 erronsously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We are of the opinion that there is substantial evidence to support the trial court’s finding, and that the finding is not against the weight of the evidence. However, we do not base our decision as to this point alone on this determination.

Another matter deserves mention. Defendants admit that there was an oral lease for the year 1972, but they claim that since it was oral it was from year to year and could be terminated by giving a 60 day notice as provided in § 441.050 RSMo 1969. During 1973 plaintiffs cultivated and harvested a crop of milo and caused to be paid to defendants as rent $15,620.90 as their one-third share of the proceeds received from the sale of the milo. They also cultivated and harvested soybeans and agreed that defendants were entitled to one-third of the proceeds from the sale of the crop. Defendants refused to accept the payment, not because they claimed plaintiffs were unlawfully on the land, but apparently because they believed that plaintiffs had harvested more soybeans than they reported. “The cases generally hold that if, after the expiration of a lease, the tenant pays rent and the landlord accepts the payment, the lease is extended,” and proof of the acceptance of rent by the landlord is evidence of his consent to a renewal. 49 Am.Jur.2d Landlord and Tenant § 1144. Also when the original lease was for one year, which defendants admit the 1972 lease was, the general rule is that the extended term is for another term for one year unless there is proof that the consent was for a month-to-month basis or some other period. 49 Am. Jur.2d Landlord and Tenant § 1139. See the Annotation entitled “Landlord’s consent to extension or renewal of lease as shown by acceptance of rent from tenant holding over,” 45 A.L.R.2d 827. See also Snowden v. Dawdy, 343 S.W.2d 197 (Mo.App.1960); State ex rel. State Highway Commission v. Demarco, 445 S.W.2d 379 (Mo.App.1969); Butz v. Butz, 13 Ill.App.3d 341, 299 N.E.2d 782 (1973).

In this case the terms of the agreement for 1972, whether oral, or written and unsigned, provided that plaintiffs should pay to defendants “as rent one-third of the proceeds received from all crops grown on said farm during period of said lease.” Plaintiffs paid to defendants, and defendants accepted as partial payment of the rent for the year 1973, one-third of the proceeds received from the sale of the milo grown on the land and harvested in 1973. Plaintiffs admit that defendants were entitled to one-third of the proceeds from the sale of the soybeans grown on the land, which they say was $643.58. Defendants claim they are entitled “as rent” to one-third of the proceeds from the sale of the soybeans, but they claim that more is due them than plaintiffs tendered.

Accepting defendants’ contention that there was an oral lease of the land for the year 1972 with the terms thereof being those set forth in the copy of the lease attached to their pleading, and that plaintiffs wrongfully held over after the termination of the one year, the acceptance as rent of one-third of the proceeds from the sale of milo constituted substantial evidence from which we find that defendants consented to a renewal of the lease on the same terms for the year 1973.

Defendants’ Point III asserts that error resulted in denying them relief under Count I of their counterclaim in which they sought to recover damages because plaintiffs did not place defendants’ share of the soybeans produced in 1972 in storage.

In the point and in argument defendants ignore the finding of the trial court that the parties had “settled up for all income and expenses for the * * * year 1972.” This finding is supported by the evidence. In addition, assuming that defendants are not precluded from recovery under Count I because of that settlement, the evidence does not support defendants’ contention. At most, defendants’ evidence was that Mr. Wall made inquiries concerning storage but did not complete the arrangements, and did not instruct plaintiffs to haul the soybeans to any particular place. In that event they were to be hauled to the Advance Grain Elevator, and that is what plaintiff did.

Defendants’ final point is that the trial court “abused its discretionary authority” in denying them relief in Count IV of their counterclaim in which defendants sought an accounting to determine the quantity of milo and soybeans harvested and sold. They assert that “no evidence [was] offered by the [plaintiffs] that they had ever accounted to the [defendants] for the number of bushels of grain harvested from [defendants’] land during the year 1973.”

First, the burden of proof as to Count IV of the counterclaim was on the defendants, not the plaintiffs. Second, plaintiffs’ evidence was to the effect that all the milo grown and harvested was sold to Monarch Feed Mills, Inc. at Dexter, Missouri, and that defendants had been paid one-third of the price received, and that all the soybeans grown and harvested were sold to the MFA Exchange at Advance, Missouri, and that defendants were entitled to one-third of the amount received. In view of this evidence, a fact issue was presented which was resolved by the trial court, and in doing so there was no abuse of its discretion.

Included in the point, more as a reason in support of the point rather than a separate assignment, is the assertion that the trial court erred in failing to grant a new trial because of newly discovered evidence. The motion was based on an affidavit of Troy Cureton in which he stated that during 1973 he “helped harvest crops grown by Howard Voss on farms located west * * * and north of Advance, Missouri,” and that “two truckloads of grain harvested from the aforesaid farms during the 1973 harvest season were hauled to and unloaded at Cape Girardeau, Missouri.”

Rule 73.01 provides that in cases tried without a jury a party may, not later than 15 days after the entry of judgment, file a motion for new trial or a motion to amend the judgment, or both. Rule 78.01 provides that “On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.” Rule 78.05 provides that when any after-trial motion is based on facts not appearing of record, affidavits may be filed which shall be served with the motion, but depositions and oral testimony may be presented in connection with after-trial motions. In this case a “new trial,” as such, would not have been appropriate. The relief requested should have been for the court to open the judgment and take additional testimony.

The courts have long viewed motions for a new trial on the ground of newly discovered evidence with disfavor and grant them as an exception and refuse them as a rule. Davis v. Illinois Terminal Railroad Company, 326 S.W.2d 78, 86 (Mo.1959). We are of the opinion that in the interest of bringing litigation to a close the same basic principles should apply to a motion to open a judgment on the basis of newly discovered evidence, but admittedly the impact of an opening of the judgment in a nonjury case is by no means as severe as granting a new trial in a jury case. The opening of a judgment because of newly discovered evidence is a matter properly within the sound discretion of the trial court, and the issue before us is whether under the circumstances in failing to do so there was an abuse of discretion.

In Gehner v. McPherson, 430 S.W.2d 312 (Mo.App.1968), the requirements to be met before a new trial may be granted are set forth, and we consider those requirements to be applicable to a motion to amend or open the judgment. We need not enumerate those requirements, but it is sufficient to say that there was an inadequate showing of due diligence to obtain the evidence and the affidavit does not affirmatively show that the testimony of Troy Cureton would have been admissible over an objection based on hearsay.

Mr. Wall testified he did not know Troy Cureton or that he was an employee of plaintiffs. However depositions were taken, defendants claimed all the soybeans were not taken to Advance, and this evidence, now described as newly discovered, obviously was readily discoverable. The affidavit simply states that Troy Cureton helped “harvest crops” on farms located north and west of Advance, Missouri, and that two “truckloads of grain,” not soybeans, were taken to Cape Girardeau. The affidavit does not state that the crops were harvested on land of defendants rented by plaintiffs or that the affiant took the grain to Cape Girardeau. The basis of the affi-ant’s information is not shown. From the affidavit he may have heard this from someone else.

Because the relief sought is extraordinary, and because of its impact on an orderly judicial process, the affidavit in support of the motion must be complete and show that the alleged newly discoverable evidence would be admissible, particularly when the witness is not produced at the hearing on the motion. We cannot, under the circumstances of this case, hold that there was a clear abuse of discretion, particularly when the specific relief sought was a “new trial” and not to open the judgment and hear additional evidence as authorized by Rule 78.01.

The judgment is affirmed.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: RENDLEN, Judge.

license: Public Domain

text:
    Andrew PETERSEN, Deceased, Plaintiff-Respondent, v. CENTRAL PATTERN CO. and Insurance Co. of North America, Defendants-Appellants.
    No. 37345.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 17, 1978.

      Robert E. Wieland, Robertson, Ely & Wieland, St. Louis, for defendants-appellants.
    Merle L. Silverstein, Julius Berg, C. Lawrence Mueller, St. Louis, for plaintiff-respondent.
   RENDLEN, Judge.

Central Pattern Company and the Insurance Company of North America (employer and insurer respectively) appeal from a judgment of the circuit court reversing the Workmen’s Compensation Commission decision denying the claim for compensation of Ralph A. Petersen, administrator of the Andrew Petersen estate.

Ralph Petersen’s sixteen year old son, Andrew, sustained injuries in an accident March 3, 1968, on the Rocklin Farm near Rockridge, Illinois, eventuating in his death the following year. As administrator of his son’s estate, Petersen made claim under Missouri’s Workmen’s Compensation Law, Chapter 287 RSMo 1969, for temporary total disability and benefits for medical, hospital and surgical services under § 287.140. The Referee found Andrew’s death resulted directly from the accident of March, 1968, but ruled claimant had not borne the burden of showing the existence of an employer-employee relationship between Andrew and appellant, Central Pattern Company, and accordingly denied benefits. Claimant appealed to the full Commission which, dismissing the claim for want of jurisdiction, found “that the referee’s statements of fact, findings of fact and preliminary conclusions of law are supported by competent and substantial evidence and the same are hereby adopted.” Claimant sought judicial review in the circuit court of St. Louis County which reversed and remanded the cause. From that order the employer and insurer appeal contending that the circuit court had substituted its judgment as to questions of fact for that of the Commission and weighed the evidence rather than determining if there was “sufficient competent evidence in the record to warrant the making of the award,” as required by § 287.490, RSMo 1969. We reverse.

Central Pattern Company located in Ha-zelwood, Missouri, manufactures patterns and castings. Its President, Ralph Petersen, and his wife own all outstanding shares of the company. On Sunday, March 3, 1968, Petersen, his sons, Andrew and Kurt, with family friends, (Mr. Trolmalen and his young son, David) left the Petersen home in St. Louis County and drove to the Rocklin farm. The farm, owned by Ralph and Marie Petersen, had recently been leased to Central Pattern and was used for family recreation and to entertain company customers. Petersen testified that on Saturdays and Sundays he and other family members would sometimes work at the farm, clearing the woods, stocking the lake or caring for the horses and because March 3,1968; that it was a “nice day to work” so he decided to go to the farm and invited the Trolmalens.

Arriving at the farm they determined to clear certain fallen trees and the two men commenced working with a chain saw. Later, while Kurt Petersen (age 15) and young David Trolmalen were playing, Andrew (age 16) began driving a large tractor and shortly thereafter was found suffering from a profound head injury. No accident was observed, but it is assumed that while operating the tractor Andrew was somehow struck on the head. He was taken to an Illinois hospital, thence to St. Mary’s Hospital in Clayton, Missouri, where surgery revealed a severe cephalhematoma and depressed skull fracture. Never regaining full consciousness, Andrew remained in St. Mary’s for fifty-three weeks and on March 12, 1969, died from the injury.

In the subsequent Workman’s Compensation action, the Referee found the requisite employer-employee relationship did not exist and accordingly denied the claim. The Commission found that Andrew’s injuries occurred in Illinois but that claimant had failed to establish that Andrew’s injuries were received under a contract of employment made in Missouri, ruling that in the absence of such showing it was without jurisdiction under § 287.110(2) and accordingly dismissed the claim. Pertinent portions of the Commission’s Order follow:

Although the referee did not make the ultimate conclusion and ruling required, we believe that his preliminary conclusion that the requisite relationship of employer-employee did not exist under the evidence presented in this case is correct. There was evidence that young Petersen worked part time for his father at Central Pattern Company and that at times he had done work for his father’s farm in Illinois for which he was paid by Central Pattern. There was however no satisfactory evidence that all work done by young Petersen on his father’s farm in Illinois was done for and on behalf of Central Pattern pursuant to any Missouri contract of hire, either express or implied, oral or written. Instead, we find that if any employer-employee relationship existed between young Petersen and Central Pattern at the time and place of the fatal accident in Illinois, it arose in Illinois under an express or implied appointment there by the father on behalf of Central Pattern and the election by the son to enter into such employment undertook the performance of the specific task which later took his life.

The principal issue is whether there was sufficient competent evidence to warrant the Commission’s conclusion that the employer-employee relationship (if any) arose in Illinois and not from a Missouri contract to hire.

It was the function of the court to examine this Order of the Industrial Commission and not the Referee’s award, Jackson v. McDonnell Aircraft Corporation, 426 S.W.2d 669 (Mo.App.1968), but while so doing the circuit court failed to apply the proper standard of review. While the Commission’s determination on questions of law is not binding on the court, Weilert v. Fruin-Colnon, 447 S.W.2d 781, 785[1] (Mo.App.1969); Williams v. S. N. Long Warehouse Company, 426 S.W.2d 725, 733[10] (Mo.App.1968), neither the circuit nor the appellate court may substitute its judgment on the evidence for that of the Commission. Davies v. Carter Carburetor, Division ACF Industries, Incorporated, 429 S.W.2d 738, 741[1, 2] (Mo.1968); Saale v. Alton Brick Company, 508 S.W.2d 243, 246[1] (Mo.App.1974). Generally in passing on the sufficiency of the evidence we view the record in the light most favorable to the findings and disregard any evidence which might support a finding different than that of the Commission, and this is true though a finding of the Commission to the contrary would also have been supported by the evidence. McCue v. Studebaker Automotive Sales, Inc., 389 S.W.2d 408, 411[2] (Mo.App.1965); Williams v. S. N. Long Warehouse Company, supra. If the award is supported by competent substantial evidence it must be affirmed unless contrary to the overwhelming weight of the evidence and we are only authorized to determine whether the Commission reasonably could have reached the result it did. Miller v. Sleight & Hellmuth Ink Co., 436 S.W.2d 625, 627[5] (Mo.1969).

The circuit court ruled that the question of whether claimant was operating under a Missouri or an Illinois contract of employment at the time of his injury was a question of law, in this it erred because “the question of where the contract of employment or arrangement was made is one of fact,” (emphasis supplied) Hall v. Denver-Chicago International, Inc., 481 S.W.2d 622, 625[2] (Mo.App.1972), turning on the intentions of the parties as evidenced by their acts and conduct, the nature of the business, the situation of the parties and all the facts and circumstances. Rendleman v. East Texas Motor Freight Lines, 355 Mo. 287, 196 S.W.2d 171, 174[6] (1946). The burden of proving that fact is upon claimant, Smith v. Braudis, 234 Mo.App. 1237, 123 S.W.2d 223 (1939), who bears the burden of bringing himself under the provisions of the Workmen’s Compensation Law at the time of the accident by showing a Missouri employment contract. Hogue v. Wurdack, 298 S.W.2d 492, 499[15, 16] (Mo.App.1957).

Respondent, citing Herbert v. Sharp Brothers Contracting Company, 467 S.W.2d 105 (Mo.App.1971) contends that the eviden-tiary facts are not in dispute, so the award that should have been entered by the Industrial Commission becomes a question of law and the Commission’s conclusions do not bind the court on review. This contention is not well taken as there was sharp disagreement concerning the facts and the inferences to be drawn therefrom. In this connection it should be noted that the Commission is charged with the responsibility of passing upon the credibility of all witnesses and may disbelieve testimony of a witness though no contradictory or impeaching evidence appears. Pate v. St. Louis Ind. Pack. Co., Div. of Swift & Co., 428 S.W.2d 744, 753[12, 13] (Mo.App.1968). It is apparent that the Commission’s order finding claimant had failed in his proof, rested in part on the question of claimant’s principal witness’ credibility. Respondent argues, quite without merit, there is no credibility issue because of the “lack of any statement, finding or conclusion by the Referee or the Industrial Commission that respondent’s testimony lacked credibility.”

While normally the Commission should make specific findings of fact, Enriquez v. Chemical Sealing Corporation, 409 S.W.2d 686, 690[3-5] (Mo.1966), the basis of the Commission’s decision is sufficiently clear to imply a finding of additional facts (beyond those expressly found) necessary to support it. Miller v. Sleight & Hellmuth Ink Co., 436 S.W.2d 625, 627[2-4] (Mo.1969); American Oil Company v. Pierce, 472 S.W.2d 458, 461 (Mo.App.1971). Though findings of fact should show how the controlling issues have been decided, the Commission is not required to state all eviden-tiary facts upon which its ultimate findings may depend, Groce v. Pyle, 315 S.W.2d 482, 491[10] (Mo.App.1958), and here we note respondent requested no additional findings from the Referee or the Commission. It is our view that the findings made comply with the requirements of §§ 287.460 and 287.490, RSMo 1969.

Mindful of the standard of review discussed above, we now examine the evidence relative to the finding that no contract for employment was made in Missouri. It is undisputed that Andrew’s injuries occurred in Illinois and that there was no written or express oral Missouri contract to hire for Andrew’s alleged employment in Illinois. The only support for respondent’s position must be found from evidence of an implied contract arising from the circumstances of the parties and the events surrounding the injury.

Petersen testified that March 3, 1968 was a nice day to work and added “Sundays we work the farm, Saturday and Sunday.” No mention was made concerning the conversations as to the purpose of Andrew’s going to the farm; for example, whether it would be for recreation, for work on behalf of the Petersens or work on behalf of Central Pattern Company. As Ralph Petersen described it; “I believe we all went to church. We got home. I would say about quarter of eleven, sat down, ate dinner, packed up, called Mr. Trolmalen and asked him if he would like to go with us. We went to the farm.” They arrived about 2:00 in the afternoon, parked the car, went into the farmhouse, and since it was a nice day they decided to clear wood.

Two tractors were kept in a shed at the farm, one crawler type John Deere 1010, which according to Petersen was quite large and the other a small International Cub tractor used to cut grass. Petersen drove the John Deere to the wooded area where he and Trolmalen worked with the chain saw piling wood to burn, as Kurt and David Trolmalen played in a nearby creek.

Sometime later “Andy got up on the crawler tractor” and though he had driven it previously his father admitted “I can’t tell you how much but he had driven it. It’s a monstrous thing.” At that juncture, there appears for the first time instructions concerning work for Andrew. Petersen testified; “I told him to go over with the crawler and take the heavy logs with the chain along to drag them.” After receiving those instructions, Andrew apparently drove the tractor about fifty feet from where the men were working because the next thing Ralph Petersen noticed was the tractor “up against the tree, the bucket was imprinted in the tree, he was sitting on the tractor. I stopped the chain saw and I was wondering why he didn’t come over or call me or something.” On cross-examination Petersen was asked concerning the time and place of making the alleged employment contract:

“Q. Had you anything in mind — had you decided what it was you were going to do?
A. Mr. Mueller [respondent’s counsel] -At what time?
Q. Mr. Weiland [appellant’s counsel]— When you got there?
A. Yes, we decided to work in the woods.
Q. [Mr. Weiland] When did you decide that?
A. When we got there [the farm in Illinois] or before or—
Q. Was it a matter of making up your mind when you got there to do whatever came to your mind to do?
A. No, no. We, Mr. Trolmalen likes to work out in the woods; I like to work out in the woods; Andy liked to work out in the woods — it was a nice day. We decided to work out in the woods.”

Though not conclusive, this equivocal testimony was pertinent to the Commission’s conclusion that the decisions to employ Andy to work in the woods and to pay him for any work performed were indeed matters decided after the parties’ arrival in Illinois, not prior to their departure from Missouri. Petersen later testified that if Andrew had not been injured he would have been paid for the work he performed by the Pattern Company, however, that statement was for the Commission to consider with all the evidence including that which tended to show the work at the farm was for the purpose of the lessor Petersen rather than the lessee Central Pattern Company.

Belying his present contention that Andrew was injured in the course of employment with Central Pattern, Petersen filed claims for certain other insurance benefits arising from his son’s injuries, stating in writing that (1) Andrew’s accident or sickness did not result from employment and (2) that he, Ralph Petersen, was the only member of the family employed by Central Pattern. These statements were made at a time when it was to Petersen’s interest to assert the injuries did not result from employment and that Andrew was not an employee of the company. By way of explanation, he later testified that he had completed the forms in the manner described and made the statement because “my insurance agency . . . told me to sign it in this manner because it was not covered under the Workmen’s Compensation Law because of my son.” This explanation does little to enhance the Petersens’ credibility who occupies conflicting roles on one hand as administrator and beneficiary of his son’s estate making a claim under the Workmen’s Compensation Act against an employer and on the other as President and owner (with his wife) of the alleged employer company.

Andrew had worked occasionally for Central Pattern Company since he was twelve years of age doing odd jobs on Saturdays and during school vacation at the company’s shop at Hazelwood, Missouri. On a few occasions he had worked for Central at the Rocklin Farm. When he was injured, no one was hired to take his place. Monies paid to him were not shown on the company’s books as salary, but instead were charged to miscellaneous expenses with nothing appearing anent social security, insurance coverage or as an employee for Workmen’s Compensation purposes. While some high school students were employed part time at the Central Pattern Company, they, unlike Andrew, were paid with payroll checks. Finally, when an auditor from North American Insurance Company [insurer herein] inquired concerning part time employees for the period ending July, 1967 (which would have included any casual or part time employment Andrew had prior to that date) the auditor was told the company had no casual labor or part time employees.

We have concluded there is substantial competent evidence supporting the Commission’s order. The judgment of the trial court is reversed.

McMILLIAN, P. J., and STEWART, J., concur.

      . Three claims had been filed. (1) February 10, 1969, a claim for compensation filed during the life of Andrew Petersen, signed by his attorney; (2) November 12, 1969, claim for “death award” by Ralph A. Petersen and Marie C. Petersen, parents of Andrew; and (3) on February 2, 1970, a claim for “temporary disability and medical” by Ralph A. Petersen as administrator of his son’s estate, which is the subject of this appeal.


author: STEWART, Judge.

text:
    The CITY OF ST. LOUIS, a Municipal Corporation ex rel. and for the Use of William ESMAR, d/b/a Midwest Waterproofing Company, Plaintiff-Respondent, v. TRU-BOUNCE, INCORPORATED and Maryland Casualty Company, et al., Defendants-Appellants.
    Nos. 37770, 37771.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 24, 1978.

      Morris W. Taylor, Hanks & Taylor, Jerry Suddarth, Clayton, for defendants-appellants.
    F. W. Mueller, Tyree C. Derrick, St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Action by the City of St. Louis at the Relation of Patrick M. Fiandaca III, Administrator C.T.M. D.B.N. of the Estate of William Esmar, deceased (plaintiff), against Tru-Bounce, Incorporated (Tru-Bounce), and Maryland Casualty Company (Maryland) as surety for Tru-Bounce, for monies due under a contract between Tru-Bounce as general contractor and William Esmar (Esmar) as subcontractor. A jury verdict was returned in favor of plaintiff and against both defendants. The verdict against Tru-Bounce was for $16,000, as the amount due under the contract and $1,600 as interest thereon. The verdict against Maryland was for $8,960 for vexatious delay and $6,450 for attorney’s fees.

The trial court granted a new trial as to Maryland. It gave as its reasons, error in giving plaintiff’s verdict directing instruction against Maryland, and because the verdict against Maryland was excessive. Plaintiff appeals from the order of the trial court granting Maryland a new trial. Tru-Bounce appeals from the judgment entered against it.

Our disposition of this cause does not require an extensive statement of the facts.

Tru-Bounce entered into a unit price contract with the City of St. Louis to do certain work on a runway at Lambert-St. Louis-International Airport. As part of the contract, Tru-Bounce was to sandblast the runway. After the contract was awarded to Tru-Bounce, it accepted the bid of Esmar to do the sandblasting for a lump sum of $17,000 and entered into a contract in accordance with the bid. Esmar did the sandblasting on the runway at the airport and was paid the sum of $1,000 on account. Tru-Bounce refused to pay the $16,000 balance and Esmar brought this action. Es-mar died during the pendency of the litigation and plaintiff was substituted.

APPEAL OF DEFENDANT TRU-BOUNCE

At the outset we must consider plaintiff’s motion to dismiss the appeal of defendant Tru-Bounce for failure to comply with Rules 84.04(c) and 84.04(d).

Rule 84.04(c) requires a “. concise statement of the facts relevant to the questions presented for determination . ” which may be followed by a resume of the testimony relevant to those issues. The portion of defendant’s brief denominated Statement of Facts is primarily a summary of the testimony of each witness and of the court’s rulings regarding the evidence offered. As such, it is not a proper statement of facts and does not comply with the rule. Graff v. Montileone, 523 S.W.2d 131 (Mo.App.1975).

The point relied on by Tru-Bounce reads:

“The trial court erred in not directing a verdict for Tru-Bounce, Incorporated.
(a) Plaintiff failed to prove a connection between Mr. Skrainka and Tru-Bounce, Incorporated.
(b) The court erred in not allowing defendant Tru-Bounce, Incorporated to read certain portions of Defendant’s Exhibit A.
(c) The court erred in barring witness R. N. Skrainka’s testimony concerning an agreement between him and William Es-mar.” (citations of authority have been omitted)

The point and subpoints fail to state wherein and why any listed action on the part of the trial court is claimed to be erroneous. This point and its subpoints fail to comply with Rule 84.04(d). Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223, 225[3] (Mo.App.1972). We also note that several paragraphs in this section of defendant’s brief lack specific page references to the transcript, in violation of 84.04(h).

Plaintiff’s motion to dismiss the appeal of Tru-Bounce is sustained and the judgment in favor of plaintiff against Tru-Bounce is affirmed.

APPEAL OF PLAINTIFF

The first issue raised by plaintiff is based on the trial court’s order granting Maryland a new trial. The order reads, in part:

“Defendant Maryland Casualty Company’s Motion for a New Trial granted on the grounds the first paragraph of instruction No. 4 was erroneous and the verdict against the defendant was excessive. Verdict and judgment of August 27, 1975 against that defendant set aside.”

Instruction 4 reads:

“Maryland Casualty Company executed and delivered its payment bond to the City of St. Louis to guarantee the payment of any and all amounts due subcontractors performing work on the contract in evidence therefore your verdict must be for the plaintiff William Esmar and against the defendant Maryland Casualty Company if you believe:
First, Defendant Tru-Bounce, Incorporated owed plaintiff a balance of $16,000 on its contract with William Esmar, and Second, the defendant Maryland Casualty Company refused to pay plaintiff the sum due him, and
Third, that the refusal of payment by the defendant Maryland Casualty Company was without reasonable cause and was vexatious and that plaintiff was thereby damaged.”

The instruction does not require a finding that Maryland executed its payment bond to the City of St. Louis, but assumes the fact of execution of the bond. Plaintiff contends that such an assumption is not erroneous because the fact of execution of the bond was not controverted. We agree.

Plaintiff, by paragraph 7 of the petition, alleged that Maryland duly executed and gave a bond to the City of St. Louis. A certified copy of the bond was attached to the petition and made a part thereof by reference. Plaintiff also set out the amount and the condition of the bond in detail. Defendant’s answer, as material to our consideration of this issue, reads:

“5. Defendants admit the allegations of paragraph five of Plaintiff’s Second Amended Petition, and deny specifically each and every allegation contained in paragraphs 6, 7, 8, 9,10,11,12,13,14, and 15 of Plaintiff’s Second Amended Petition.
6. Defendants further specifically deny any and all allegations that have not been either admitted or denied in this Answer.”
Controlling is Rule 55.23 which reads: “55.23 Execution of Written Instrument
Deemed Confessed — When
When any claim or defense is founded upon a written instrument and the same shall be set up at length in the pleading or a copy attached thereto as an exhibit, the execution of such instrument shall be deemed confessed unless the party charged to have executed the same shall specifically deny the execution thereof. (Adopted Jan. 19, 1973, effective Sept. 1, 1973.)”

To put the execution of the bond in issue it was necessary for Maryland to make specific reference to that particular allegation. To “specifically deny each and every allegation” of certain numbered paragraphs is a general denial. In this case, Maryland’s general denial did not put in issue the execution of the bond. Universal Printing Co. v. Sayre & Fisher Co., 501 S.W.2d 180 (Mo.App.1973); United Farm Agency v. Howald, et al., 263 S.W.2d 889 (Mo.App.1954). While plaintiff offered evidence on the issue of execution, neither defendant offered any evidence to overcome the effect of Rule 55.23. The execution of the bond stands confessed. Therefore, it was proper to assume execution and delivery in the instruction and the trial court erred in granting a new trial on this issue. In view of our conclusion, other matters briefed by the parties on this issue need not be considered.

The court also granted a new trial on the ground that the verdict against Maryland was excessive.

Granting a new trial on the ground that a verdict is excessive is a holding that the verdict is against the weight of the evidence on that fact issue. That action may not be overturned unless the trial court has abused its discretion. The burden of establishing an abuse of discretion is upon plaintiff. Union Electric Co. of Missouri v. McNulty, 344 S.W.2d 37, 39 (Mo.1961).

The verdict of the jury reads:

“We, the jury, find the issues in favor of the plaintiff and we assess plaintiff’s recovery against the defendant Tru-Bounce, Incorporated, as follows:
Recovery under the contract $16,000
Recovery for interest $1,600_ and we assess plaintiff’s additional recovery against the defendant Maryland Casualty Company, as follows:
Recovery for penalty $8.960_
Recovery for attorney’s fees $6,450

Plaintiff’s point on this issue reads:

“If the verdict against the defendant Maryland Casualty Company is excessive it can be cured by remittitur but the court should also increase the verdict against the defendant Tru-Bounce, Incorporated in order to carry out the intent of the jury.”

It is obvious that the point proffered here by plaintiff does not attack the order of the trial court as an abuse of discretion. Plaintiff fails to tell us which action or ruling of the trial court is sought to be reviewed and wherein and why such action is claimed to be erroneous. The point, as presented, fails to comply with Rule 84.04(d). Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223, 225[3] (Mo.App.1972).

The nature of this case, however, requires us to make some observations, with respect to the verdict, for guidance upon retrial. Plaintiff speculates that the jury mistakenly placed the sum of $1,600, found as penalty, in the space on the verdict form provided for interest. This for the reason that the primary judgment was for $16,000 and Section 375.420 provides that the penalty for vexatious delay shall not exceed 10% of the judgment and therefore the sum of $1,600 was damages for vexatious delay. Plaintiff also contends that the sum of $6,450, found as interest, was placed upon the line provided for attorney’s fees and $8,960 interest was placed on the line provided for penalty. Plaintiff asks that we correct the judgment with respect to Tru-Bounce by entering a judgment for interest in the sum of $8,960 in place of the sum of $1,600. This we may not do for two reasons. First, plaintiff did not challenge the judgment as entered against Tru-Bounce by way of a motion for new trial or other post trial motion. For that reason he may not now contend that the verdict is improper. We cannot disturb that judgment. V.A. M.R. 79.03; Anderson v. Independant Mutual Fire Ins. Co., 453 S.W.2d 609, 614[8-10] (Mo.App.1970). In addition, plaintiff sought no relief in the trial court with respect to the verdict against Maryland. The record does not reveal that any effort was made to have the verdict corrected at the time it was returned or by way of post trial motion. Bunting v. McDonnell Aircraft Corp., 522 S.W.2d 161, 168[11] (Mo. banc 1975).

The judgment against Tru-Bounce is determinative of the extent of liability of Maryland under the bond and for interest to the date the verdict of the jury was returned; the liability of the surety being measured by the liability of the principal. Vulcan Steam Shovel Co. v. Cobb, 199 S.W. 448, 450[2] (Mo.App.1917); see also Home Insurance Company of New York v. Savage, 231 Mo.App. 569, 103 S.W.2d 900, 901[5] (1937).

The trial court did not limit its order granting a new trial to the issue of damages only. From what we have said above, the issues remaining in the case are (1) the liability of the surety for vexatious delay and attorney fees, and (2) if the surety is liable, the amount of damages, for vexatious delay, and the amount of attorney fees.

The judgment against Tru-Bounce is affirmed. The order of the trial court is affirmed in part. The cause is remanded to the trial court for trial limited to the issues remaining as set out above.

McMILLIAN, P. J., and REINHARD, J., concur.

      . This has been recognized in other jurisdictions for over a century. C. F. Seward v. Miller and Miller, 6 How.Prac. 312 (N.Y.S.Ct.1852).


author: WASSERSTROM, Judge.

text:
    William GAMBRELL, Plaintiff-Appellant, v. KANSAS CITY CHIEFS FOOTBALL CLUB, INC., et al., Defendants-Respondents.
    No. KCD 29288.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      H. George Lafferty, Jr., Kansas City, for plaintiff-appellant.
    Thomas A. Sweeny, William J. Burrell, Kansas City, for defendants-respondents.
    Before SHANGLER, P. J., WASSER-STROM, J., and MARTIN and CLARK, Special JJ.
   WASSERSTROM, Judge.

The question for determination is whether plaintiff’s present suit against his former employer for fraud and deceit is precluded by the Workmen’s Compensation Act. The trial court held in the affirmative. We affirm.

Plaintiff, a professional football player, entered into negotiations to play for the Kansas City Chiefs Football Club, Inc. He reported for physical examination to the team doctors, Elfeldt and Miller, and those doctors reported him physically fit to play. A contract was signed between plaintiff and the Kansas City Chiefs on June 17, 1974.

On August 17, 1974, plaintiff received severe physical injuries when tackled in an exhibition football game with the Los An-geles Rams. He filed claim for that injury before the Missouri Compensation Commission in November, 1974, and he received an award in that proceeding in the sum of $5,250, which the Kansas City Chiefs paid on April 9, 1976.

During the pendency of the compensation proceedings, plaintiff filed the present lawsuit against the Kansas City Chiefs and Doctors Elfeldt and Miller. Count I alleged that sometime in July, 1974, Elfeldt and Miller conducted physical examinations of plaintiff on behalf of the Kansas City Chiefs to determine his physical fitness to play professional football and that as a result of those examinations they represented to plaintiff that his physical condition was good and that he was fit to play; that those representations were false in that plaintiff at that time was disabled as a result of prior injuries and those preexisting disabilities rendered him unfit to participate in professional football and would subject him to great risk of serious and permanent physical injury; that the defendant doctors and the defendant Kansas City Chiefs through them knew or should have known that the representations in question were not true; that the misrepresentations were material and made with the intent that plaintiff rely upon them and enter into a contract with and perform as a player for the Kansas City Chiefs; that plaintiff was ignorant of the falsity of those representations and he had a right to rely and did rely thereon. Count I further alleges that the injuries received by him in the Rams football game on August 17, 1974, either would not have occurred had he been physically fit or were much more severe in extent than he would have received had he been physically fit to play football. This count then proceeds to allege as follows:

“That as a direct and proximate result of the aforedescribed wrongful acts of the defendants, the plaintiff suffered an aggravation of a pre-existing injury in his back, neck, spine, and the muscles, tendons, nerves, vertebrae, tissues and blood vessels attached thereto and connected therewith. He suffered a severe and lasting shock to his central nervous system resulting in the loss of his natural rest and sleep. The plaintiff has suffered from great physical pain and mental anguish. The plaintiff will be required to undergo hospitalization and surgery in the future for the aforesaid injuries. The plaintiff has sustained a severe and permanent disability and can no longer participate in his profession as a football player nor can he participate in any other normal physical activity. The plaintiff has suffered a great loss of wages and will suffer a loss of wages in the future because of the aforesaid injuries.”

Under Count I, plaintiff prayed actual damages of $250,000. Under Count II, he claimed punitive damages of $1,000,000. In Count III, he alleged conspiracy by the three defendants to make the misrepresentations referred to in Count I, for which he prayed actual damages of $250,000; and in Count IV, he prayed punitive damages on account of the conspiracy in the sum of $1,000,000. Count V claimed breach of contract against defendant Kansas City Chiefs alone in the sum of $19,642.81.

The Kansas City Chiefs filed separate answer and followed up with a motion for summary judgment on Counts I through IV, supported by documents reflecting all of the Workmen’s Compensation proceedings. The Kansas City Chiefs urged in support of their motion that plaintiff’s damages were all the result of an accidental injury covered by the Workmen’s Compensation Act and for which he was fully compensated by the award of the Workmen’s Compensation Commission, and that plaintiff’s rights under the Compensation Act are exclusive under the provisions of Section 287.120. (All statutory references are to RSMo 1969). The trial court sustained that motion and made the judgment final for purposes of appeal under Section 512.-020.

On this appeal, plaintiff attacks the judgment sustaining the motion for summary judgment on two fronts. He contends, first, that his claim in this case is not based on the accident of August 17, 1974, but rather upon the fraud and deceit which occurred earlier. He contends that it is only the claim for accidental injury which is barred and that his cause of action for fraud and deceit does not fall within nor can it be barred by the Workmen’s Compensation Act. As his second contention, plaintiff says that a material issue of fact (namely whether he was an employee at the time of the medical examinations) remained unresolved, and for that reason summary judgment should not have been granted.

An appropriate starting point for a discussion of plaintiff’s first and major proposition is the underlying philosophy of Workmen’s Compensation legislation. This legislation rests on the foundation concept of the social desirability of giving employees a sure and speedy means of compensation for injuries suffered in the course of employment without the necessity of proving fault on the part of the employer. By way of exchange consideration to the employer, these Acts provide compensation in only a relatively modest amount and protect the employer by making that compensation exclusive of all other remedies. This latter consideration is reflected in Section 287.120 of the Missouri Act which provides that the employer shall furnish compensation under the Act “and shall be released from all other liability therefor whatsoever” and that “[t]he rights and remedies herein granted to an employee, shall exclude all other rights and remedies * *

This exclusivity, however, is qualified by a rule accepted in most jurisdictions that the Act bars common law suits for only those damages covered by the Act and for which compensation is made available under its provisions. This rule is followed in Missouri. Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193 (Mo.banc 1968). Thus, under this rule the employee is still free despite the Act to bring suit at common law for wrongs not comprehended within the Workmen’s Compensation Act, such as false imprisonment and defamation. A considerable number of cases holding to this effect are collected in the annotation “Workmen’s Compensation Provision as Precluding Employee’s Action Against Employer for Fraud, False Imprisonment, Defamation, or the Like”, 46 A.L.R.3d 1279.

Most of the eases relied upon by plaintiff fall in this category. Thus, Skelton v. W. T. Grant Company, 331 F.2d 593 (5th Cir. 1964) was an action for false arrest where the employee claimed damages for embarrassment and humiliation. Powers v. Middlesboro Hospital, 258 Ky. 20, 79 S.W.2d 391 (1935) was an action for false imprisonment where the employee alleged damages by way of fright, shock and physical pain and anguish. Braman v. Walthall, 215 Ark. 582, 225 S.W.2d 342 (1949) was a suit for slander in which the employee alleged damages for mental anguish, humiliation and damage to reputation. In each of those cases cited by plaintiff, and others like them, the damages for which the employee sought recovery were other than (or at least only to a very slight extent) physical injuries to the body of the type intended to be compensated by the pattern of the Workmen’s Compensation Act. See Larson’s Workmen’s Compensation Law, Sec. 68.30, p. 13-18.

The application of the rule just mentioned becomes much more difficult in a case by an employee for fraud and deceit where the plaintiff employee alleges that some fraud on the part of the employer interrelated with a bodily injury suffered by the employee in the course of his employment. Larson, a leading authority on the subject of Workmen’s Compensation, discusses this problem at Section 68.32, p. 13-22, of his work where he cites and discusses decisions on this question from many jurisdictions and summarizes as follows:

“The cases involving allegations of deceit, fraud, and false representation can best be sorted out by distinguishing those in which the deceit precedes and helps produce the injury, and those in which the deceit follows the injury and produces a second injury or loss.”

Representative of the latter class of cases, which are not precluded by the Workmen’s Compensation Act, is Ramey v. General Petroleum Corporation, 173 Cal.App.2d 386, 343 P.2d 787 (1959), a ease cited and relied upon by plaintiff in this ease. In Ramey, the plaintiff employee was caused by misrepresentations to wait beyond the period of limitations before bringing suit against a third party defendant, and he sued both his employer and the third party for conspiracy to defraud him. The employer’s defense of exclusivity of the Workmen’s Compensation Act was held not effective in its favor “under the peculiar circumstances alleged.” As pointed out by Larson, the court in Ramey “sharply distinguished between the two injuries involved; first, the personal and physical injury compensated by the act; and second, the fraud injury destroying a valuable right of action against the third party by causing it to lapse because of the running of the statute of limitations.” Larson explains that cases falling within this group are not precluded by the Workmen’s Compensation Act because “the alleged deceit has acted, not upon plaintiff’s physical condition, but upon his legal rights under the compensation act.”

The case at bar does not fall within the category just discussed but rather within Larson’s first category “in which the deceit precedes and helps produce the injury.” As to this category, which represents the situation with which we are dealing here, Larson states at page 13-22: “In the first category, a tort action has usually been found barred, since the deceit, so to speak, merges into the injury for which a compensation remedy is provided.” Larson’s conclusion is persuasive and is supported by his analysis of the cases on the subject. A repetition of that full analysis in this opinion would be redundant. Special attention nevertheless should be called to Bevis v. Armco Steel Corporation, 86 Ohio App. 525, 93 N.E.2d 33 (1949), where the Syllabus by the court states:

“In an action for false representation and fraud, brought by an employee against his employer, where the damages charged in the petition are those for which under the Workmen’s Compensation Act the employee may have an award, and where such employee alleges that he has availed himself of such provisions and obtained an award of compensation, such petition is subject to demurrer.”

That official court ruling is amplified by Judge Ross’ concurring opinion (referred to with approval in Greenwalt v. Goodyear Tire & Rubber Co., 164 Ohio St. 1, 128 N.E.2d 116 [1955]) as follows:

“It seems clear that such actions as libel, slander, malicious prosecution, false representations, and an action for fraud may still be maintained, although the relationship of employer and employee exists, and the facts sustaining such cause of action might involve the incidents of employment.
“In the instant case, a cause of action for false representations is stated in part. The difficulty with the case of the plaintiff is that the damages alleged fall within the classification definitely provided for by the Workmen’s Compensation Act, and the plaintiff, therefore, fails to allege other damages for which the law now recognizes a remedy by compensation.
“The injury charged, as the result of the defendant’s fraud, is the exact injury for which he is allowed and did claim compensation under the Workmen’s Compensation Act.
“The law does not furnish a double satisfaction for a wrong. The plaintiff claims in his pleading that he was induced to continue in his employment by reason of the fraud of his employer and suffered certain injuries thereby. Those injuries are the ones for which he claimed and was awarded compensation. If he were permitted to recover in the instant action, a double satisfaction for the same injury would follow.
“I also wish to be understood as excluding from the rule of abrogation a situation where, by reason of the fraud of the employer, the employee is caused to fore-go his remedy under the Workmen’s Compensation Act. The damage in such case would not be met by compensation under that Act. There would not, as in the instant case, be a double satisfaction.”

Another felicitous statement of the same view was expressed in Sarber v. Aetna Life Ins. Co., 23 F.2d 434, l.c. 435 (9th Cir. 1928), where an employee brought action for deceit based upon the employer’s insurance company falsely representing that metal fragments had been removed from the plaintiff employee’s leg, by reason of which the plaintiff was caused to suffer continued pain, inability to work and medical expense. The court held that the damages claimed could be recovered under the Compensation Act and that remedy was exclusive:

“For these reasons, we are of opinion that the original accident was the proximate cause of the damages claimed in this action, and the state Compensation Act provides what the Legislature has deemed just and adequate compensation for all such injuries. If we are correct in this conclusion, there is little room to doubt that the remedy thus provided is exclusive of all other remedies, common-law or statutory, as between the employee, on the one hand, and the employer and the insurance carrier, on the other, and that the exclusive provisions of the Compensation Act cannot be evaded by bringing an action in some other form or under some other name.”

The conclusion that plaintiff’s present common law action is precluded by the Workmen’s Compensation Act remains valid despite the fact that plaintiff in Counts II and IV prays for punitive damages. True enough, the Act makes no provision for punitive damages, but that omission was intentional and does not prevent the compensation remedy from being exclusive. This point is well treated in Roof v. Velsicol Chemical Corporation, 380 F.Supp. 1373, l.c. 1374 (D.C.Ohio 1974) where the court held:

“The Ohio courts have apparently recognized no exception for actions demanding punitive damages only.
“Nor would such an exception be consistent with Ohio Workmen’s Compensation Act. This Act provides statutory rights to relatively speedy and moderate reimbursement to workmen for injury sustained in work related activities. These rights were substituted for all previously available remedies, on the theory that partial reimbursement is more socially desirable than the uncertainty of litigation for full compensation in such eases. See State ex rel. Crawford v. Industrial Comm., 110 Ohio St. 271, 143 N.E. 574; 58 O.Jur.2d Workmen’s Compensation Sec. 3.
“To allow both compensation under the Workmen's Compensation Act and an action for punitive damages would clearly frustrate Ohio’s policy of partial reimbursement. Therefore, the Court finds that Ohio courts would not recognize an action for punitive damages where an action for compensatory damages for the same injury or disease cannot be maintained.
“It appears from the record that defendant Nease was a complying employer at all times relevant herein and therefore Ohio’s rule of non-liability protects it from said claims for punitive damages.”

See also Wooddell v. Washington Steel Corporation, 269 F.Supp. 958 (D.C.Pa.1967).

Nor does plaintiff’s allegation of conspiracy require any different result. No matter how his cause of action be framed, his claim ultimately reduces to one for bodily injuries for which compensation can be and actually has been had by plaintiff under the Workmen’s Compensation Act.

Turning now to plaintiff’s second contention dealing with the propriety of summary judgment relief, his objection lacks merit. The pleadings do leave an unsatisfactory ambiguity as to whether the physical examinations by Doctors Elfeldt and Miller preceded or came after June 17, 1974, the date of the employment contract. However, resolution of that factual question is unimportant for the purpose of this case. Even if it be assumed that both examinations preceded the contract, that does not prevent the Workmen’s Compensation Act from being applicable.

Plaintiff’s argument runs that this factual question is material because there would have been no employment relationship and hence no Workmen’s Compensation coverage unless plaintiff had a contract of employment at the time of the two examinations. That argument is fallacious because the important date for determining employment is August 17, 1974, the date of the injury, not any date in June or July when the examinations took place and when misrepresentations are alleged to have been made.

As has already been discussed in this opinion, the key to whether the Workmen’s Compensation Act precludes a common law right of action lies in the nature of the injury for which plaintiff makes claim, not the nature of defendant’s act which plaintiff alleges to have been responsible for that injury. In this case, as has already been shown, the damages for which plaintiff seeks recovery herein are accidental bodily injuries squarely within the ambit of the Workmen’s Compensation Act. As stated by Larson, the fraud and deceit in June or July, if any, became merged in the physical injuries which occurred in August, 1974. By that time, plaintiff unquestionably had become an employee under written contract of employment.

The trial court’s ruling sustaining the grant of summary judgment was correct and is therefore affirmed.

All concur.

      . Plaintiffs brief contains a third point under which he argues defensively that the compensation award does not foreclose this suit by reason of res judicata or collateral estoppel. The judgment does not require the aid of either of those doctrines, and this point by defendant therefore need not be discussed.


author: TURNAGE, Judge.

text:
    Donna Jean FLEMING, Petitioner, v. Jack Eugene FLEMING, Respondent.
    No. KCD 29316.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.

      James W. Farley, Farley & Johnson, Farley, for petitioner.
    Don Witt and Abe Shafer, Witt & Shafer, Platte City, for respondent.
    Before SWOFFORD, C. J., and SHAN-GLER, DIXON, PRITCHARD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   TURNAGE, Judge.

Donna Jean Fleming filed her petition in habeas corpus in this court in which she requested the two children born of her marriage to Jack Fleming be delivered to her. This court issued a writ of habeas corpus to Jack and waived production of the two children. The case has now been briefed and argued.

Donna was granted a default dissolution in 1975 in the Circuit Court of Platte County.. In that decree the custody of the two girls was granted to Donna. In May, 1976, Jack and Donna entered into a stipulation in which they agreed there had been such change in circumstances that the permanent custody of the two girls should be transferred to Jack. Thereafter, the court entered a judgment in which it recited “this matter comes on for hearing and is taken up on the stipulation agreed to between the parties hereto.” The court then found the judgment should be modified by transferring the permanent custody of the two girls from Donna to Jack and eliminating the obligation of Jack to pay child support.

In her petition for habeas corpus, Donna alleged the judgment transferring custody to Jack was illegal because it showed on its face it was entered pursuant to a stipulation and not following a hearing at which evidence was produced from which the court could make the requisite findings required by § 452.410, RSMo 1975 Supp.

Jack contends the modification judgment is at most irregular and Donna is barred from a collateral attack by habeas corpus but must mount a direct attack by motion in the circuit court.

Habeas corpus has been held proper to procure the custody and possession of a minor child in certain instances. These have been stated in In Re Wakefield, 865 Mo. 415, 283 S.W.2d 467, 471[5, 6] (banc 1955) to be:

Such, generally, are situations where the parent to whom custody was awarded is enforcing such an award, where there has been no formal award of custody, where the parent to whom custody has been awarded has died and the divorce proceeding has thus abated (Schumacher and Crouse cases, supra,) or where for some reason the award of custody is illegal on the face of the record and the legality of the order is questioned by habeas corpus.

Donna claims the modification in this case is illegal or unauthorized on its face because the judgment shows the court acted only upon the stipulation and agreement of the parties without hearing evidence on the question. The judgment recites it was entered on the stipulation between the parties. The judgment does not recite that any evidence was received. This presents the question of the validity of the judgment as reflected on its face when it shows it was entered on the stipulation and agreement of the parties but without any evidence as to the best interest of the children being presented.

Section 452.410 prohibits a court from modifying a custody decree “unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child.”

Courts have had occasion to consider the validity of modification orders made solely on the stipulation and agreement of the parties. In Wood v. Wood, 400 S.W.2d 431 (Mo.App.1966) the court stated the practice of entering a judgment “without a hearing and merely on the consent and stipulation of the parties” is a practice that should not, except in rare instances, be followed. 400 S.W.2d 487[7, 8]. The court indicated “evidence should be taken to determine the propriety of the stipulation entered into by the parties and whether or not the custody provided therein serves the best interest and future welfare of the child.” This court followed Wood in Flickinger v. Flickinger, 494 S.W.2d 388 (Mo.App.1973). In that case this court made it clear that when a stipulation is offered as a basis for modification, the court is required to receive evidence and to inquire into the propriety of the stipulation and to determine if the stipulation serves the best interest of the children. This court further stated that a modification of a custody decree made without a hearing at which evidence is adduced is beyond the court’s jurisdiction.

The holding in Wood and Flickinger has long been the rule in this state. In State ex rel. Tatum v. Ramey, 134 Mo.App. 722, 115 S.W. 458 (1909) this court held a judgment could not be modified so as to change the custody of children without a hearing. This rule has also been reaffirmed in Villaume v. Villaume (Mo.App.1977) [decided by the St. Louis District December 6, 1977].

From the above cases it is clear the court was unauthorized to modify the original decree which vested custody in Donna without a hearing. Such result is further dictated by § 452.410. Before modifying the decree the court was required to find from facts produced at a hearing that a modification to change the custody of children is necessary to serve their best interest.

The modification in this case was obtained without a hearing and without the production of any facts from which the court could determine a change in their custody was required to serve their best interest. All of this appears from the face of the judgment by which the modification was purported to have been made. Because the illegality of the modification appears on its face, Donna properly sought habeas corpus in this court to test the validity of the modification order.

Jack’s contention that the judgment of modification is at most irregular and not subject to collateral attack in this habeas corpus proceeding must be rejected. In Fernbaugh v. Clark, 236 Mo.App. 1200, 163 S.W.2d 999, 1003[2—4] (1942) this court stated:

A distinction is clearly drawn between judgments which are lawfully rendered, with competent jurisdiction, and judgments which are the result of an excess of jurisdiction. In the latter case the legality of the judgment may be collaterally attacked in a proceeding of this character.

In Tomlinson v. French Institute of Notre Dame De Sion, 282 Mo.App. 597, 109 S.W.2d 73, 77[10] (1937) this court held that a writ of habeas corpus “brings into review the legality of the authority by which the circuit court acts in making its award.”

From the above discussion it is clear that habeas corpus is proper in a child custody case when an order awarding custody is challenged because of an illegality which appears on the face of the record. Such illegality appears when the record shows a custody order has been changed only on the stipulation and agreement between the parties without a hearing and without evidence being adduced from which the court is justified in finding a change will serve the best interest of the child. In such circumstances habeas corpus does not constitute an impermissible collateral attack but is a proper remedy.

Although this court and counsel are concerned about the welfare of the children involved in this unfortunate litigation, a careful review of the return to the writ of habeas corpus and the denial thereto reveals that no issue has been raised concerning the best interest of the children. In that posture, no question relating to the best interest of the children is presented.

The disposition of this case makes it unnecessary to pass on the motions filed by Donna.

The custody of the two minor children is remanded to Donna without prejudice to the right of Jack to file a motion seeking to modify the custody provisions of the original dissolution judgment. ■

All concur.


author: PER CURIAM.

text:
    Ronald Lee CHANDLER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29330.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    Thomas M. Dunlap, Whitlow, Riley, Mar-iea & Dunlap, Fulton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   PER CURIAM.

Ronald Lee Chandler filed a motion under Rule 27.26. After holding an evidentia-ry hearing the court made findings of fact and denied relief.

A careful review of the record reveals the findings of fact are not clearly erroneous; no error of law appears; and an opinion would have no precedential value.

The judgment is affirmed in accordance with Rule 84.16(b).

All concur.


text:
    STATE of Missouri ex rel. Linda Mae BRAULT, Relator, v. Honorable Harold A. KYSER, Judge, Juvenile Division, Circuit Court of Henry County, Missouri, 27th Judicial Circuit, Respondent.
    No. KCD 29682.
    Missouri Court of Appeals, Kansas City District.
    Jan. 30, 1978.
    James L. Muller, Kansas City, for relator.
    William J. Cason, Clinton, for respondent.
    Before SWOFFORD, C. J., and SHAN-GLER, DIXON, PRITCHARD, WASSER-STROM, SOMERVILLE and TURNAGE, JJ.
   WASSERSTROM, Judge.

The question for determination in this case is whether the relator mother is entitled to a change of judge in this proceeding to terminate her parental rights. The respondent trial judge held not, and relator filed application in this court to prohibit respondent from proceeding further. We granted a preliminary rule in prohibition and now make that rule absolute.

On December 19, 1972, the juvenile officer of Henry County initiated proceedings by a petition under Section 211.031 to have the juvenile court take jurisdiction of Sheryl Ann Trapp and three siblings as neglected children in need of care and treatment. This proceeding was given case number J-887. Judge Kelso Journey entered an order on that petition on January 2, 1973, finding the children to be neglected, making them wards of the juvenile court, and placing them in the care of the Department of Welfare.

On January 3, 1974, the juvenile officer filed another petition in the same case number J-887, this petition having as its goal the termination of parental rights under Section 211.441. The trial was held on the issue of terminating the parental rights of the natural parents, and judgment terminating those rights was entered on April 29, 1974. The parents appealed that judgment, and this court reversed in In Re Trapp, 528 S.W.2d 489 (Mo.App.1975). However, during pendency of the appeal the Division of Family Services placed Sheryl Ann with David Lee and Judy Elaine Bridgeman, who filed a petition for adoption, and Judge Journey entered an order granting them temporary custody pursuant to that petition.

Thereafter on December 27, 1975, after the decision of this court, relator and her husband filed a motion to set aside the order of January 2, 1973, or in the alternative for a hearing on the restoration to them of the custody of the children; and on April 15, 1976, they moved in the adoption case for vacation of the order of temporary custody to the Bridgemans. On April 26, 1976, Judge Journey did set aside the temporary custody of Sheryl Ann and revested custody of her in the Division of Family Services. The next day the Bridgemans filed a motion for leave to intervene in case No. J-887, which motion was accompanied with their proposed petition to intervene which included a prayer for termination of the rights of the natural parents. The Bridgeman motion for leave to intervene was granted on April 28, 1976. The parties engage in extensive dispute on this appeal as to the effectiveness of the latter order, in part based upon relator’s insistence that proper notice of the application was never given to her and because the order of April 28, 1976, was entered ex parte. That question need not be pursued for the reason that even if it be assumed that the leave to intervene was properly granted, that does not change the ultimate issue or in any way alter the disposition to be made on this writ.

On April 29, 1976, relator and her husband filed a motion for change of judge. She insists that at the time that motion was filed neither the movants nor their attorney had any knowledge, actual or constructive, that the Bridgemans were trying to bring before the court a renewed effort to terminate parental rights of the natural parents. However, even if they could be held to such knowledge, that would be immaterial. Their motion was not required to nor did it ask for a change of judge as to all matters then pending or contemplated under case number J-887. Rather their motion applied for a change of judge only “on their Motion (1) to Set Aside Custody Order of January 2, 1973; (2) to Set Aside Support Order of February 27, 1973; and (3) in the Alternative, for a Hearing to Restore Custody of Children to Natural Parents.” That motion for change of judge was sustained by Judge Journey on May 28,1976, and in due course the Missouri Supreme Court assigned Judge H. A. Kelso in place of Judge Journey.

On June 15, 1976, the parents moved to set aside the order granting leave for the Bridgemans to intervene and for a new order denying the intervention. That order was never called up and the case languished until February, 1977. In that month, the Bridgemans tacitly abandoned their original intervention and filed a new motion to intervene. Then, on February 22, 1977, Judge Kelso having retired, the Missouri Supreme Court returned jurisdiction of this case to Judge Kyser, respondent herein, who was Judge Journey’s successor in office.

Following this, on April 29, 1977, the juvenile officer filed in case number J-887 a new petition to terminate parental rights. In response to that, relator filed a new application for change of judge. Respondent denied that application on June 10, 1977. Relator’s application for writ of prohibition followed.

Respondent refused the last requested change of judge and resists this writ on the ground that relator already had one such change of judge on May 28,1976, and she is barred from a second change by Rule 51.-05(d). Relator answers by saying that the petition filed by the juvenile officer on April 29, 1977, constituted a new and distinct proceeding as to which she had never had any previous change of judge. The issue therefore narrows down to whether everything filed under case number J-887 is a single proceeding in which only one change of judge is allowed to either side, or whether the petition to terminate parental rights filed by the juvenile officer on April 29, 1977, is to be considered a proceeding separate from the neglected children case already pending under that number.

An analysis of Chapter 211 leads to the conclusion that the two proceedings are separate, as relator contends. Proceedings pertaining to neglected children are covered by Sections 211.031-211.431. In careful contrast, provisions pertaining to the termination of parental rights are grouped together as Sections 211.441-211.511 and are specially marked off with the subheading “Termination of Parental Rights.”

Not only are these two sets of provisions sharply divided by distinct separation and specific headings, but each has a fundamentally different purpose. The neglected child provisions contemplate only a temporary shift of custody and leave the underlying parental rights intact. On the other hand, Section 211.441 et seq. contemplates a complete and permanent rupture of the family relationship. The Missouri decisions recognize the vast difference between these two procedures. In Re S-M-W, 485 S.W.2d 158, 164 (Mo.App.1972); S.K.L. v. Smith, 480 S.W.2d 119, 124 (Mo.App.1972); In Re C_ _ _ _, 468 S.W.2d 689, 691 (Mo.App.1971). In view of what these cases describe as the “awesome power” under Section 211.441, a much stronger test for parental default is prescribed by that section than is required under the neglected child provision, Section 211.031. The difference between the two procedures is further and very dramatically shown by contrasting Section 211.481, which provides that a parent may demand a jury trial when the proceeding is to terminate his parental rights, whereas the public is wholly excluded under Section 211.171.5 in the more routine neglected child type of proceeding. The separate and distinct nature of the type of proceeding under Section 211.441, which so clearly appears from the foregoing analysis, has been expressly recognized in In Re S-M-W, supra, which states with respect to the provisions dealing with termination of parental rights: “That body of laws is a complete code within itself 4e 4c 4c JJ

The juvenile officer’s petition filed on April 29, 1977, raised a new issue and sought distinctly different relief from what was before the court immediately prior to that filing. The resolution of this new issue required a different hearing procedure. To all intents and purposes, this petition instituted a new and different “civil action” within the meaning of Rule 51.05(d) and permitted a fresh application for change of judge. See Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323 (1952); and State ex rel. Interstate Motor Freight System, Inc. v. Hall, 409 S.W.2d 678 (Mo. banc 1966).

Respondent argues that the petition dated April 29, 1977, arose out of the same controversy as the matters already pending in case number J-887 and that therefore the petition of April 29, 1977, should be considered a compulsory counterclaim under Rule 55.32(a). Relevant to this argument, respondent cites Griggs v. Miller, 374 S.W.2d 119 (Mo.1963), for the proposition that the filing of a counterclaim does not give rise to a right by the defendant to file a second request for change of judge. One difficulty with respondent’s argument lies in its assumption that Rule 55.32(a) applies to juvenile court proceedings. Not so. Rule 110.04 imports into these proceedings the general rules of civil procedure only to the extent those rules are not inconsistent with the special rules contained in the Rules of Practice and Procedure in Juvenile Courts, Rules 110 to 128. Important to the present point, Rule 114.03 provides that no party is even required to file a responsive pleading, which negates any notion of requiring counterclaims. Indeed, the whole concept of counterclaims would be inappropriate and incongruous in juvenile proceedings.

Stated somewhat differently, the situation here does not fit the counterclaim pattern. Relator had no affirmative claim on file which could serve as a predicate for a counterclaim by the juvenile officer. Immediately prior to the juvenile officer’s filing of his petition on April 29, 1977, to terminate parental rights, the only application for affirmative relief pending was the neglected child petition which had been filed by a previous juvenile officer. Relator had nothing on file except a motion to undo the orders which had been entered at the juvenile officer’s request in the neglected child proceeding, and in which she sought “reinstating the natural and normal parent and child relationship.” In Re I.M.J., 428 S.W.2d 18, 22 (Mo.App.1968). In other words, there was no proceeding on file instituted by relator to which the juvenile officer’s petition of April 29, 1977, could be considered as a counterclaim.

In reality, respondent argues for a mandatory joinder of actions by the juvenile officer. This would make good sense if non-joinder would result in the splitting of what constitutes a single cause of action. However, as already discussed at length in a previous part of this opinion, a neglected child case and a termination of parental rights case are fundamentally separate and distinct and cannot be lumped together as one single cause of action.

Respondent also cites Dagley v. Dagley, 270 S.W.2d 553 (Mo.App.1954), and State v. Gray, 478 S.W.2d 654 (Mo.1972). The type of proceedings in these cases were completely different from what is here involved and the attempted analogies are not persuasive.

The rule is made absolute and respondent is prohibited from taking any action under the petition filed April 29, 1977, other than to grant relator’s request for change of judge to hold the proceedings thereunder.

All concur.

      . All statutory references are to RSMo 1969.

      . That rule becomes applicable by reference through Rule 110.04.

      . Griggs differs from the present case in that the defendant there sought to justify a second change of judge by reason of his own pleading of new matter by way of counterclaim. In contrast, relator here seeks a second change based on her opponent’s introduction of a new and different proceeding.