author: SIMON, Presiding Judge.

text:
    CITY OF EUREKA, Plaintiff-Respondent, v. Travis HALL, et al., Defendants, and St. Louis County, Missouri, Intervenor-Defendant.
    No. 48245.
    Missouri Court of Appeals, Eastern District, Division Two.
    Jan. 29, 1985.
    Motion For Rehearing and/or Transfer to Supreme Court Denied March 26, 1985.
    Application to Transfer Denied April 30, 1985.

      Jerome Wallach, Wallach & Steele, St. Louis, for plaintiff-respondent.
    Thomas W. Wehrle, St. Louis County Counselor, Clayton, for intervenor-defend-ant.
   SIMON, Presiding Judge.

This is an annexation case in which the County of St. Louis, a first class constitutional charter county, appeals from a declaratory judgment of the Circuit Court of the County of St. Louis which granted the City of Eureka authorization to proceed with annexation of approximately 1,243 acres (about 1.94 square miles) of land situated in unincorporated St. Louis County. We affirm the decision of the trial court.

Eureka is a municipal corporation organized and existing under the laws of the State of Missouri, as a city of the fourth class in St. Louis County, Missouri. On June 19,1979, Eureka’s Board of Aldermen adopted a resolution seeking to annex property described in the resolution. This property is contiguous and adjacent to the current city limits of Eureka and contains about 132 residents within its 1,243 acres. Six Flags Over Mid-America, a recreational amusement park, encompasses about one-half of the proposed annex area, although part of the Six Flags property remains undeveloped. The other major commercial development in the annex area is a Ramada Inn, with the remainder of the annex area largely rural. On August 7, 1979, the City of Eureka and the annex area held an election, in accordance with the applicable statutory provisions, in which a majority of the votes cast within Eureka (394-21) and within the annex area (37-25) approved the proposed annexation. Eureka then filed its petition for declaratory judgment on September 17, 1979. Subsequent to Eureka’s filing its declaratory judgment action, Section 71.015 RSMo 1978 governing annexations was amended, effective May 1980. The nineteen days of trial in 1983 spanning eight weeks resulted in a voluminous record of more than 1700 pages in transcript and a multitude of exhibits from which the trial court’s lengthy findings of fact and law were culled. The trial court issued its judgment on December 16, 1983, granting Eureka authorization to proceed with the annexation.

On appeal, St. Louis County (County) pinpoints as error: (1) the failure of Eureka’s annexation efforts to conform to the newly amended annexation statute with its additional requirements; (2) the denial of St. Louis County’s post-trial motion to reopen the case for additional evidence; (3) the absence of evidence that the annexation was necessary to the proper development of Eureka; (4) the failure of Eureka to demonstrate its ability to furnish municipal services to the annexed area within a reasonable time after the effective date of the annexation; and (5) the absence of substantial evidence to show the annexation was reasonable and necessary, as to be fairly debatable before Eureka’s Board of Aider-men.

County’s first point argues that Eureka must comply with the host of procedural requirements contained in Section 71.015, as amended in 1980, which imposed more stringent requirements for annexation. For example, subsection (1) requires that at least 15% of the perimeter of the area to be annexed be contiguous with the city’s existing boundary. Subsection (2) requires development of a “Plan of Intent” to provide services to the annex area and a public hearing, and places a limit on the future effective date of the annexation. Subsection (3) requires good faith effort to notify all the owners of record and residents in the area proposed to be annexed. Subsection (4) requires presentation at a public hearing of the “Plan of Intent” with supporting evidence bearing on major services presently provided by the city, a proposed time schedule for providing such services to residents in the annex area within three years, and information as to city assessment, tax rates and how the city proposes to zone the annex area. Subsection (5) requires a declaratory judgment action by the city, following the hearing, if the city council adopts an ordinance to annex. One of the requirements of the petition is that it state facts showing the ability of the city to provide municipal services to the annex area within three years after the annexation becomes effective. Subsection (6) deals with the election procedures. Subsection (7) provides that failure to provide municipal services within the three year period will permit an action to be brought for deannexation. Subsection (8) exempts any city which has filed a declaratory judgment action prior to May 13, 1980, from compliance with subsection (5). Subsection (5) as noted relates to the declaratory judgment action which must be filed.

Eureka admits it did not meet the requirements set forth in Section 71.015 as amended in 1980, but argues that before the effective date of May 13, 1980, the annexation had already proceeded through all the legislative steps, gaining approval by the voters of both the annex and annexing area in August 1979. The suit for declaratory judgment was filed in September 1979, more than eight months before the effective May 1980 date for the amendment to Section 71.015. We agree with the trial court’s conclusion that City of Branson v. Biedenstein, 618 S.W.2d 665 (Mo. banc 1981) is dispositive of this point. In City of Branson, our Supreme Court stated:

In order to comply with subsection (5), the city must be in a position to satisfy the requirements of the preceding subsections (1) through (4), mentioned above. Being relieved, however, by subsection (8) from compliance with subsection (5), it would follow that respondent would not be expected to comply with subsections (1) through (4), either. The legislature’s common sense approach is evident. It would be impossible for a city ... which had proceeded in good faith under the old § 71.015 to comply with the new requirements contained in subsections (1) through (5) without starting completely anew. It is clear that the legislature intended to relieve cities which had already commenced annexation proceedings from complying with subsection (1) through (4), as well as subsection (5), of the amendment. Subsection (7), which creates a cause of action for deannexation where the municipal services have not been provided within three years, likewise was not intended to apply to a city which, as here, was not required at the time it commenced annexation proceedings to furnish municipal services within three years of the effective date of annexation. Id. 670-71[6].

City of Branson, while holding that the amendments to Section 71.015, effective May 1980, were procedural, noted the amendments contain an exemption to relieve certain annexation efforts from compliance therewith. Id. We reject County’s characterization that these comments are merely gratuitous. City of Kirkwood v. Allen, 899 S.W.2d 30 (Mo. banc 1966), upon which the County relies is readily distinguishable. City of Kirkwood dealt with a 1968 amendment to Section 71.015 RSMo 1959 requiring a vote in both the city and the area to be annexed in first class charter counties before a declaratory judgment was filed. The City of Kirkwood had completed only the preliminary legislative step of annexation by its passage of a resolution of its intent to annex certain land. The court held that the amendment providing for the dual election was procedural and applied to the previously filed annexation suit. Otherwise, the critical step affording residents of the annex area the right to vote on the annexation would not be met. That is not the situation before us, since the dual election was held as required by Section 71.015(6). Point denied.

County’s second point urges that we find the denial of its motion to vacate the judgment and reopen the cause for additional evidence erroneous. County claims evidence after the trial that Lester Baird, Eureka’s city administrator who testified extensively for Eureka at trial, had resigned was material and would have probably produced a different result in the trial court’s decision because of the importance of the role played by the city administrator. Generally, motions for new trial on the basis of newly discovered evidence are addressed to the sound discretion of the trial judge, and are viewed with disfavor and are granted only in exceptional circumstances. Sulltrop v. Sulltrop, 655 S.W.2d 850, 851[3] (Mo.App.1983). The motion must show: (1) the evidence has only recently come to County’s knowledge; (2) due diligence would not have uncovered the evidence sooner; (3) the new evidence is so material it would probably produce a different result; (4) the new evidence is not cumulative; and (5) the object of the evidence is not to impeach the character or credit of a witness. Id. at 851 — 52[4]. Further, a motion for new trial on the basis of newly discovered evidence must be supported by some proof, either within the motion itself or by accompanying affidavits. Vanderson v. Vanderson, 668 S.W.2d 167, 172[16] (Mo.App.1984).

The trial judge correctly denied County’s motion. In its motion County stated that Lester Baird, Eureka’s city administrator, left his employment with Eureka, but failed to show that the evidence had only recently come to its knowledge. No mention was made when Baird’s employment was terminated or when the County discovered this fact. The motion stated that misfeasance by Baird in his job performance prompted the termination of his employment. The motion further stated Baird’s termination “calls into question Eureka’s ability to provide municipal services within a reasonable time” to the annex area, “as well as the credibility of the evidence put forth on behalf of Eureka.” The motion had no supporting affidavits.

Nothing in the motion suggests that the removal of Eureka’s city administrator would have produced a different result by the trial court. The County’s position that the elimination of the city manager “calls into question Eureka’s ability to provide municipal services” sidesteps the requirement that the County show the city administrator’s absence was so material as to produce a different result. Furthermore, the motion’s allegation that Baird’s termination undermines “the credibility of the evidence put forth on behalf of Eureka” and the allegation of Baird’s misfeasance intimate that the object of the evidence is to impeach or discredit Baird, which would be contrary to Sulltrop’s fifth requirement. Nothing in the motion indicates the termination of this city employee is so material that the City of Eureka’s municipal services will be discontinued. The motion is not supported by proof, within the motion itself or by accompanying affidavits. Point denied.

County’s final three points essentially question whether the evidence is sufficient to show the annexation was reasonable and necessary as to be fairly debatable by the Board of Aldermen of the City of Eureka. When reviewing the propriety of a decision by a legislative body, the appellate court determines whether there is substantial evidence to support the legislative decision. City of Town & Country v. St. Louis County, 657 S.W.2d 598, 605 (Mo. banc 1983). Thus, in reviewing a city’s legislative decision to annex if there is substantial evidence to show that annexation was reasonable and necessary, then the issue was at least debatable and the legislative action must stand. Id. “The so called ‘debatable’ rule merely means that if there is substantial evidence both ways [on the issue of annexation], then the legislative conclusion is determinative.” Binger v. City of Independence, 588 S.W.2d 481, 485 (Mo. banc 1979). (quoting City of Olivette v. Graeler, 369 S.W.2d 85, 96 (Mo.1963)).

We are not concerned with weighing the interests of St. Louis County on the issue of the annexation. The rule in City of Olivette v. Graeler, 369 S.W.2d 85 (Mo.1963), that the reviewing court must consider the interest of the county as a whole in determining the reasonableness of a proposed intra-county annexation was overruled in City of Town & Country, 657 S.W.2d at 605-06. In Town & Country, the Missouri Supreme Court stated that the legislature, by giving all the affected residents the right to vote on the proposed annexation, permitted the interests of the county to be considered in the first instance by residents of the affected areas as part of the totality of the circumstances and consequences inherent in the choice of governmental auspices. 657 S.W.2d at 605. Therefore, County’s point four which states Eureka failed to present convincing or substantial evidence that it could provide municipal services to the annex area or that the needs of the inhabitants of the annex area are not already cared for by the County and that they should therefore be supplanted by Eureka is without merit. By their vote, the residents of Eureka and the annex area weighed the relative interests, benefits, and disadvantages of the County against those of Eureka in the choice of government offered them and indicated their preference. We must examine only whether there was substantial evidence that the annexation was reasonable and necessary so that the issue of annexation was fairly debatable, issues raised in County’s points three and five.

Although not exhaustive or exclusive, City of Perryville v. Brewer, 557 S.W.2d 457, 462 (Mo.App.1977), sets forth several criteria which may be weighed and considered by a court before arriving at a decision on the reasonableness and necessity of a proposed annexation:

(1) there must be a need for residential or industrial sites within the proposed area;
(2) the city is unable to meet its needs without expansion;
(3) only needs which are reasonably foreseeable and not visionary should be considered;
(4) past growth may be relied on to show the future necessity;
(5) in evaluating future needs, the extent to which past growth has caused the city to spill over into the proposed area should be considered;
(6) the beneficial effect of uniform application and enforcement of municipal zoning ordinances in the city and in the annexed area may be considered;
(7) also to be considered is the need for or the beneficial effect of uniform application and enforcement of municipal building, plumbing and electrical codes;
(8) the need for or the beneficial effect of extending police protection to the annexed area;
(9) the need for or the beneficial effect of uniform application and enforcement of municipal ordinances or regulations pertaining to health;
(10) the need for and the ability of the city to extend essential municipal services into the annexed area;
(11) enhancement in value by reason of adaptability of the land proposed to be annexed for prospective city uses; and
(12) regularity of boundaries.

It is not necessary that all of the factors which have been listed above be considered in determining the question of reasonableness. Id. We capsulize the facts from the record on appeal essential to our determination.

Eureka is located in the southwest portion of St. Louis County, twelve miles west of Interstate 270. While connected by Interstate 44 to the major metropolitan area, Eureka is isolated from urbanization by a huge expanse of public and institutional land surrounding it. To the east of Eureka are situated approximately 6200 acres including Beaumont Reservation, Castlewood State Park, Lone Elk Park, Mini-Bike Park, Washington University Research Area and West Tyson Park. Another 5300 acres of public and institutional land including Greensfelder Park, LaSalle Institute, Rock-wood Range and Reservation, and Society of Mary act as a green belt from north of Eureka to the more urbanized area of St. Louis County. The Meramec Hills region encompassing Eureka and its environs contains the most rugged topography in the county with outcropping rocks on the hilly terrain. Thirty-two percent of Eureka is situated in the flood plain of the Meramec River and twenty-three percent is in steep slopes. Only forty-five percent of the city remains buildable according to its experts. Only two percent of the annex area lies in the flood plain and twenty-two percent in steep slopes, with seventy-four percent of this area buildable. The geographic isolation of Eureka from the more urbanized areas of St. Louis County has also spurred its independent development of water, sewer, road maintenance, police protection and other services for its residents. Laclede Gas Company, the Metropolitan Sewer District, and St. Louis County Water Company presently provide no services to Eureka or the annex area.

Eureka was originally incorporated in 1954 and had a population of 951 persons within its area comprising 2.61 square miles. Eureka has perfected a series of annexations resulting in an increase of its original area to 6.72 square miles. Its population quadrupled between the incorporation in 1954 to 3,862 persons according to the 1980 U.S. Census. The addition of 1,243 acres of the annex area would increase the size of Eureka to approximately 5,541 acres.

A mayor and board of aldermen govern Eureka. The city is divided into three wards, each having two aldermen. Eureka has a planning and zoning commission, a board of adjustment, a police and fire department, industrial development authority, city attorney, city engineer, and a public works department which contains the street, water, and park departments. Eureka has zoning and subdivision ordinances which it administers throughout the city. The city has adopted the 1978 BOCA Basic Building Code, Family Dwelling Code, BOCA Basic Mechanical Code, and BOCA Basic Industrialized Dwelling Code. Eureka has adopted external appearance, plumbing, electrical and explosive codes, sign regulations, and regulations for a cable television system franchise. Eureka’s electrical and explosives inspections are contracted for through St. Louis County.

Eureka’s public works department consists of the street, water, sewer, and park departments. Eureka provides road maintenance for approximately twenty miles of roads. Its roads have been improved so that over 95% are now permanently paved. Eureka has a road maintenance garage, a material shelter, a vehicle shelter, and an assorted complement of road equipment enabling the city to provide snow removal, street cleaning, and street signing and striping for the benefit of its residents. Approximately 2.18 miles of St. Louis County maintained roads would go to the City of Eureka upon annexation. The only roads in Eureka maintained by the State Highway Department are Highway 109 and Interstate 44.

The park department oversees the maintenance of the four parks (Ruprecht Memorial, Lion’s, Drewel Memorial, and Hilltop) comprising Eureka’s park system.

Eureka provides water and sewer services to most homes and businesses within its municipal boundaries. The municipal sewerage treatment plant, newly constructed in 1972 and subsequently improved to increase its capacity, also enables Eureka to provide service to Six Flags, the Ramada Inn, and others in the annex area with a sufficient reserve capacity to accommodate future growth in both the city and the annex area. Water for both Eureka and the annex area is drawn from four deep wells. The city’s water supply is plentiful with a present production capacity adequate, for a populace of 17,000. Eureka and the annex area share a strip of commercial development along the Interstate 44 corridor.

The Eureka Police Department has ten full-time law enforcement officers providing twenty-four hour service with three patrol vehicles at its disposal. The police station is located adjacent to the City Hall within two miles of any point in the city. The closest precinct station in the annex area serviced by the St. Louis County Police is in Ballwin, some thirteen miles away.

Both Eureka and the annex area are served by the Eureka Fire Protection District with manpower of eight paid employees and forty-one volunteers. The low insurance rating on the quality of fire protection services offered is attributed to the vast area of seventy-nine square miles which the fire district encompasses.

St. Louis County provides by contract a broad range of health services through its Department of Community Health and Medical Care for both the incorporated area of Eureka and the annex area. The services include inspectors for food services, swimming pools, sewerage treatment, and water facilities, as well as control services for milk, animals (rabies), and noise and air pollution.

In its brief the County states that 16.7% of Eureka’s land is undeveloped and complains the trial court made no finding concerning the amount of land capable of development in Eureka. The County takes the broad stance that without Eureka’s showing that the annex area is needed for expansion in the sense of land available for development, annexation must fail. A city is not foreclosed from annexing adjacent territory simply because undeveloped tracts remain within its present boundaries or because its citizens do not choose to build within certain of its areas. City of Cameron v. Stafford, 466 S.W.2d 115[6] (Mo.App.1971). There is no requirement that a city utilize all vacant land before it is able to extend its city limits. City of O’Fallon v. Bethman, 569 S.W.2d 295, 303 (Mo.App.1978). Eureka does not claim the annexation is intended to correct a lack of vacant land in its bounds. Eureka argued its need to offer prospective industrial users a choice of desirable land to develop. The County’s emphasis that Eureka still has vacant industrial acreage does not render Eureka’s argument meritless. Vacant land in a city, whether industrial, commercial or residential, can vary greatly in its desirability to attract development. A decreasing amount of suitable land may underlie the slowdown in the rate of increase in Eureka’s population. The annex area here is adjacent to or contiguous with the city’s boundaries. Its addition does not distort Eureka’s boundaries into an odd configuration. Eureka already provides water and sewer service to portions of the annex area. The demand for public services provided by Eureka is growing, both within and beyond the present corporate limits. The financial condition of Eureka appears sound and annexation will not weaken, but more likely strengthen, that aspect. The opportunity for the area to develop as one cohesive entity rather than a patchwork of subdivisions has been shown. While much of Eureka’s area is undeveloped as is the annex area, Eureka is in an optimum position to serve as a hub for the orderly development of the growth currently underway in its immediate vicinity rather than into several unconnected areas with problems in providing or obtaining municipal services. The community of interest shared by Eureka with the annex area which the trial court found accurately characterizes testimony presented at trial.

Here, the evidence is certainly sufficient to show that Eureka is capable of and can, within a reasonable time as needed, provide police, water, sewer, street, and like municipal services. On the basis of all the foregoing, we conclude that the trial court correctly found that the City of Eureka has shown that the propriety and necessity of annexation is fairly debatable and, as such, we shall not disturb the legislative decision of the Board of Aldermen of the City of Eureka.

Judgment affirmed.

STEWART and STEPHAN, JJ., concur.


source: Caselaw Access Project

author: KENNEDY, Presiding Judge. CLARK, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Kimberly HALL, Appellant.
    No. WD 35617.
    Missouri Court of Appeals, Western District.
    Jan. 29, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied April 2, 1985.
    Application to Transfer Denied April 30, 1985.

      C. Clifford Schwartz, Clayton, for appellant.
    Diane Garber and Robert R. Sterner, Fulton, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   KENNEDY, Presiding Judge.

Defendant Kimberly Hall was convicted of acting in concert with her husband in possessing less than 35 grams of marijuana, § 195.020, RSMo Supp.1982, and was sentenced in accordance with the jury verdict to 30 days in jail and a $500 fine, § 195.200.1(l)(a), RSMo Supp.1982.

On the information given by a confidential informant, Lieutenant Ken Bishop of the Callaway County sheriffs office obtained on December 31, 1982 a warrant to search the home of Kimberly and James Hall for marijuana and amphetamines. The next morning Lieutenant Bishop entered the home, found James Hall standing in his bedroom doorway and defendant Kimberly Hall in bed. He directed the couple to dress and to sit in the living room. The officer then searched the home and found in one bedroom a water pipe, and, hidden in the collector bag of a standup vacuum cleaner several cellophane bags of marijuana and an aluminum foil packet of hashish. In defendant’s bedroom, he found a metric scale near the bed and a cellophane bag of marijuana on the dresser. On an end table in the living room, a cellophane bag of marijuana lay among fruit and nuts in a bowl.

By information, James Lee Hall and Kimberly Hall were charged jointly with acting in concert in possessing more than 35 grams of marijuana. The cases were severed and the husband’s case tried first, resulting in a jury verdict of not guilty to the charge of joint possession with his wife of over 35 grams of marijuana. Defendant wife, found guilty by jury verdict of joint possession of less than 35 grams of marijuana, appeals.

I

Defendant first contends that collateral estoppel should have barred her trial because she and her husband had been charged in the same information with the same offense of joint possession of marijuana but, since the jury in her husband’s trial found him not guilty, they “must have necessarily found that the wife was not guilty”. Defendant contends that in her trial the information, evidence and charge to the jury were “exactly and mutually the same” as in her husband’s trial, and thus, by failing to sustain defendant’s motion to dismiss and plea in bar of prosecution, the trial court committed prejudicial error, placing her in jeopardy twice for the same offense. A separate point, that it was error to submit the charge of joint possession with her husband, is based also upon the husband’s acquittal in the earlier trial.

The fact that defendant’s husband, with whom she was charged with joint possession of marijuana, had in a separate trial been acquitted of a similar charge, i.e. joint possession with defendant of marijuana, based upon the same event and the same evidence, is no bar to defendant’s prosecution. That proposition is too clear to require much discussion. Defendant was not a party to the trial of the charge against her husband, and the result of that case has no bearing, in any way, upon the trial of the charge against the defendant. For a good analysis of the subject, see State v. Swearingin, 564 S.W.2d 351, 353-55 (Mo.App.1978).

II

Next, defendant challenges the submissi-bility of the case because, she contends, there was insufficient evidence to establish her use or control of or dominion over the marijuana found in the house.

Defendant correctly says that the state must prove her knowing and intentional possession of the marijuana. State v. Barber, 635 S.W.2d 342, 343 (Mo.1982). While one in exclusive possession of premises may be deemed to be in possession of illicit drugs found therein, State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975), if possession is joint with another person, as was the case here, there must be some additional evidence to link the defendant with the drugs. Id.

It is clear that defendant occupied the house in question with her husband. When the police officers entered the house on New Year’s morning, 1983, defendant was in bed covered with a sheet. A bag of marijuana was lying on a dresser “located directly next to the bed or practically touching the bed”. It would have been “maybe a couple of feet” from the defendant. On the same dresser was an ashtray containing a small amount of marijuana. Also in the same bedroom, on top of a stand or table of some description, was a metric scale with some unidentified vegetable matter on it. The evidence does not show its distance from the bed, but the officer saw it as he entered the bedroom.

The other marijuana, the hashish and the water pipe were found in other rooms in the house.

The state made a submissible case against the defendant. The marijuana in the cellophane bag and in the ashtray lying on the dresser within defendant’s reach, near the bed where defendant was found when the officers entered the house, added to the fact of defendant’s access to the living room and the other “bedroom” (although there was no bed in it) where the other drugs and the water pipe were found is sufficient to establish her actual or constructive and knowing possession of the drugs. State v. Zimpher, 552 S.W.2d 345, 349 (Mo.App.1977); State v. Jackson, 576 S.W.2d 756 (Mo.App.1979). We have examined each of the cases cited by defendant where joint possession of premises was held not to establish prima facie the possession of drugs found therein, namely, State v. Barber, 635 S.W.2d 342 (Mo.1982); State v. McGee, 473 S.W.2d 686 (Mo.1971); State v. Moore, 659 S.W.2d 252 (Mo.App.1983); State v. Lowe, 574 S.W.2d 515 (Mo.App.1978); State v. Funk, 490 S.W.2d 354 (Mo.App.1973). To that list might be added two recent cases of this court, State v. Hall, 680 S.W.2d 179 (Mo.App.1984); State v. Falkner, 672 S.W.2d 373 (Mo.App.1984). In each case there was a significant difference from the case we have before us at the present time. There were absent the salient circumstances of defendant’s joint residence with her husband for at least one month; the close proximity of marijuana to the bed where defendant was sleeping at the time the officers entered the house; the visibility in the bedroom of the metric scale; and her access to the other areas in the house where the drugs and the drug paraphernalia were located, most in plain view. State v. Kerfoot, 675 S.W.2d 658, 662 (Mo.App.1984). Absent from this case is the danger that she was innocent of any knowing and intentional possession of the drugs.

Ill

Defendant contends that several motions in limine requested by the prosecutor and granted by the trial court denied defendant her Sixth Amendment right to confront witnesses against her. The prosecutor sought and was granted the following motions: (1) To prevent any reference to the outcome of defendant’s husband’s trial, (2) to prohibit references to fingerprinting and scientific tests which could have been made but were not, and (3) to prevent reference to the confidential informant and to prohibit cross-examination of the informant’s reliability.

The court was not in error in its in limine order prohibiting any reference to the outcome of defendant’s husband’s trial. The fact that he had been acquitted of the charge against him was wholly irrelevant, just as his conviction thereof would have been wholly irrelevant to any issue in defendant’s trial. State v. Clark, 646 S.W.2d 409 (Mo.App.1983).

The state made and the trial court sustained a motion in limine to prohibit references to fingerprinting and scientific tests which could have been made but were not. There is no doubt, as an abstract proposition, that this ruling was incorrect. If the state could have fingerprinted objects which defendant was charged with possessing, and did not do so, it was perfectly in order for the defendant to show this fact, either by cross-examination of the state’s witnesses or by independent evidence. After all, the defendant was charged with possession of marijuana. The marijuana was contained in cellophane bags. As a part of the state’s evidence there were introduced a water pipe and a scale, both of which were drug paraphernalia. These objects were found in the residence and in the bedroom which the defendant occupied with her husband. It was incumbent upon the state to show defendant’s possession of the marijuana. Her fingerprints on the cellophane bags containing the marijuana or on the drug paraphernalia would have been relevant to show her possession of them; the absence of her fingerprints would also be relevant on the same issue.

Similarly, if there were scientific tests available to the state which might be relevant on the issue of defendant’s guilt, the absence of such tests was a relevant inquiry, either on cross-examination or by direct proof.

The difficulty we have is that we are unable to see any prejudice to defendant. The defendant, in cross-examining the police officer, brought out that the scale did not have her fingerprints on it, and that the water pipe did not have her fingerprints on it. She brought out also that no fingerprint samples were taken of the cellophane marijuana bags. The trial court did limit defendant’s attorney in going into whether fingerprints could be obtained from the bags.

As to other “scientific tests” the defendant did not give the trial court any idea what scientific tests she would have liked to inquire about, and gives us no such idea. Before we will reverse for trial court error, we must be able to determine that defendant suffered prejudice thereby. We are unable to assess any prejudice to defendant on account of the exclusion of evidence unless there is a showing what the evidence would have been if allowed. See Kansas City v. Johnson, 679 S.W.2d 328 (Mo.App.1984).

Neither was the trial court in error in ordering that there be-no reference to the confidential informant or in prohibiting cross-examination of the informant’s reliability. The defendant does not tell us how the confidential informant or his credibility is relevant in any way, on any issue. In the testimony before the jury, there was no reference to a confidential informant. The only connection between the confidential informant and this case was that a confidential informant had supplied information upon which the search warrant was based. Such testimony was before the judge on the motion to suppress the evidence seized under the search warrant, but not before the jury. The defendant did not suggest to the trial court, and does not suggest to us, what use she might have made of any evidence with respect to the confidential informant or his credibility. We cannot find error in the court’s order, or if we could find that it was erroneous, we cannot find any prejudice to the defendant.

IV

Defendant challenges the validity of the search warrant which, she contends, was invalid because issued without probable cause.

Defendant’s specific argument under this point is that the affidavit upon which the warrant was based was based on hearsay information from an informant, not information of a reliable (police) informer, and not based on or corroborated by the police officer’s own investigation or observation. The affidavits of the two police officers upon which the search warrant had been issued by Judge Augustine were, we believe, sufficient to justify the judge’s issuing the search warrant. The “totality of circumstances”, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), presented by the two officers’ affidavits were as follows: A confidential informant, believed by one of the officers to be reliable, had informed the officers that he had seen the sale of amphetamines and marijuana in the James Hall residence on two occasions during the month of December 1982, and that there were more amphetamines and mañjuana in the Hall residence at the time the sales were made. The informant had in the past provided information which, according to one of the affidavits, had proven to be reliable. The officers knew that there was a James Hall residence at Five Oak Avenue in Fulton, Missouri, where the informant stated that the drug sales had taken place. The officers knew that James Hall had been “associated with narcotics”, and knew of his arrest for “felony possession of marijuana” within the preceding year.

We are unable to say that such affidavits presented to Judge Augustine did not establish a “fair probability” that contraband would be found in the James Hall residence. Illinois v. Gates, 103 S.Ct. at 2332. See also State v. Horsey, 676 S.W.2d 847 (Mo.App.1984). And it was only that that had to be shown to Judge Augustine as a basis for the search warrant. It was not necessary that they establish the presence of the contraband in the place to be searched either prima facie, or by a preponderance of the evidence, or beyond a reasonable doubt. State v. Rohrer, 589 S.W.2d 121, 122 (Mo.App.1979), cert. denied, 445 U.S. 916, 100 S.Ct. 1277, 63 L.Ed.2d 600 (1980).

Under the totality of the circumstances, we find that Judge Augustine had a “ ‘substantial basis for ... concluding]’ that probable cause existed,” Illinois v. Gates, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (I960)). The warrant was a valid one. The point is denied.

V

Lastly, defendant claims that the admission into evidence over objection of a water pipe, scale and hashish were irrelevant in her trial for marijuana possession. The hashish in particular “allowed the jury to consider evidence of more serious crimes not charged.”

The evidence of the hashish and of the drug paraphernalia was relevant to prove defendant’s knowledge and intent. In order for the state to make a case against defendant, it was necessary to prove her knowledge of the character of the vegetable material shown to be marijuana, and to show that her possession was intentional and knowing. State v. Barber, supra, 635 S.W.2d at 343 (Mo.1982). The presence of the hashish and the drug paraphernalia was a circumstance tending to show that knowledge and intent. State v. Williams, 539 S.W.2d 530, 534-35 (Mo.App.1976). The fact that their presence has also proved other crimes of defendant is no impediment to its introduction in this case, so long as it was relevant to prove an issue in the present case. Id. 539 S.W.2d at 533-35. The point is denied.

The judgment is affirmed.

CLARK, J., concurs and files concurring opinion.

DIXON, J., concurs and concurs in concurring opinion by CLARK, J.

CLARK, Judge,

concurring.

The result reached in this case appears, at first blush, to be illogical and unfair. Appellant and her husband were charged in a single information with acting in concert to possess jointly a quantity of marijuana found in their dwelling but not on the person of either. The husband was tried first and acquitted. That result was necessarily based on a finding by the jury that appellant did not possess the marijuana because, under the joint possession charge, her possession was sufficient, if proved, to convict the husband. But the trial of the wife resulted in conviction, a verdict which is inconsistent and incompatible with the result of the previous case in its factual underpinning. The purpose of this concurring opinion is to demonstrate why this result is sound and acceptable.

Appellant’s argument that acquittal of her husband in the severed trial of her case precludes prosecution of her relies on the concept of collateral estoppel. That doctrine bars a suitor from relitigating a proposition already decided as an element of a final judgment. Here, the ultimate fact issue in the cases of appellant and her husband was whether either, acting in concert, possessed marijuana. The verdict acquitting the husband is compatible only with a finding by the jury that marijuana was not possessed by either appellant or her husband. Appellant argues here that the state, as a party to prosecution of the husband’s case, is precluded by collateral estoppel from relitigating the same fact question which has already been decided in the previous trial. Cited, among other cases, is Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

It is first appropriate to note that the claim made here by appellant is not based on double jeopardy or, so far as can be perceived, upon any constitutional guarantees. While double jeopardy does include the component of collateral estoppel, the Fifth Amendment protection is limited in application to reprosecution of the same individual. This case is therefore distinguishable from Ashe v. Swenson, supra, where the fact issue was the identity of Ashe as one of the persons who robbed a group of individuals. When the state failed in the first trial to prove it was Ashe who robbed one of the victims, it was precluded from retrying Ashe on charges of robbing the others under the doctrine of collateral estoppel as a component of double jeopardy. Identity of offenses and of the individual are essential to the defense of double jeopardy.

Collateral estoppel is, in many respects, a broader doctrine than double jeopardy. It focuses on issues in terms of ultimate facts and thus may be applicable even though the former and later proceedings are not based on the same offense. In contrast to double jeopardy, however, collateral estop-pel does not necessarily bar all prosecutions, only the relitigation of issues determined by the former verdict and judgment. Annot., 9 A.L.R.3rd 203, 245 (1966). Appellant’s advocacy of collateral estoppel conforms here to that aspect of the doctrine because she makes no claim that acquittal of her husband on that circumstance alone exonerates her, only that the state may not again attempt to prove that which a prior judgment has denied, her possession of marijuana.

The principal difficulty with the availability of collateral estoppel to appellant, appealing as the result may be in terms of fairness and consistency, is the absence of mutuality. Quite apparently, appellant was under no handicap in her defense because of the prior trial of her husband and, had the state been successful in that prosecution, the result would have been of no aid in establishing any element of the case against appellant. Thus, appellant seeks unilateral application of the collateral es-toppel concept.

Non-mutual collateral estoppel is a doctrine which has received wide acceptance following its original introduction in Bernhard v. Bank of America National Trust & Savings Ass’n, 19 Cal.2d 807, 122 P.2d 892 (1942). It was adopted in Missouri in Oates v. Safeco Insurance Co. of America, 583 S.W.2d 713 (Mo. banc 1979). These, however, were civil cases. The same general acceptance in criminal cases has not followed.

California does appear to find the same rationale supportive of non-mutual collateral estoppel in criminal and civil cases and to make no distinction where a criminal prosecution is involved. People v. Taylor, 12 Cal.3d 686, 527 P.2d 622, 117 Cal.Rptr. 70 (1974) set out a three part test to apply in determining whether collateral estoppel was applicable to bar litigation of an issue in a criminal trial. The elements are (a) common identity of the issue in the present and in a prior trial, (b) a final judgment on the merits in the prior trial, and (c) the party against whom the estoppel is asserted was a party in the prior trial. Mutuality is not a requirement. This rule was applied to bar prosecution of an indicted eo-conspirator in People v. Superior Court, 44 Cal.App.3d 494, 118 Cal.Rptr. 702 (1975) where a prior trial had resulted in acquittal of the two other co-conspirators.

The only recent Missouri cases which discuss the subject are State v. Clark, 646 S.W.2d 409 (Mo.App.1983) and State v. Swearingin, 564 S.W.2d 351 (Mo.App.1978). Neither provides an analysis fully applicable to appellant’s contention and the facts of this case. In Clark, the question of collateral estoppel could not be explored because no identity of an issue of ultimate fact common to both trials was ascertainable. (n Swearingin, the general statement is made that collateral estoppel is unavailable in a criminal case except as to defendants who were parties to the prior adjudication, but the opinion does not offer a satisfying analysis of why a doctrine generally accepted in the civil field should be rejected out of hand in criminal cases. On the other hand, no reported Missouri decision has suggested any disposition by courts here to approve non-mutual collateral estoppel as a defensive tool in criminal prosecutions.

The arguments which support rejection of collateral estoppel as applicable in criminal cases where the estoppel is unilaterally imposed against the state were enumerated in Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). First, the state often does not have the full and fair opportunity to litigate the fact issue, raised in the estoppel claim because of procedures distinctive to criminal cases. Discovery rights are limited by court rules and constitutional privileges, there is no entitlement of the state to a directed verdict or judgment notwithstanding the verdict, a new trial may not be had because a verdict of acquittal is against the weight of the evidence, and the state has no right of appellate review after a judgment of acquittal.

Secondly, the state may be prevented from the use of inculpatory evidence by concepts peculiar to criminal law, such as the exclusionary rule, and, as a consequence, the first defendant may be acquitted. As to a second defendant, however, the evidence may be admissible and supportive of conviction.

Finally, there is an overriding public interest in the enforcement of the criminal law which justifies the prospect of repetitive litigation and the attendant burden on court dockets. Again, it is to be emphasized that the issue in collateral estoppel cases considered here is not one of individual rights present in double jeopardy situations, but a restriction on the state concerning successive opportunities to prove similar cases against different individuals.

The conditions which distinguish criminal cases and the policy considerations involved are, in the writer’s view, adequate to justify rejection of non-mutual collateral estop-pel as a defense to prosecution of appellant here and to like defendants similarly situated. I therefore concur in the opinion delivered by Kennedy, J.


author: CROW, Presiding Judge.

text:
    Charles L. TYRA, Respondent, v. DELTA VETERINARY CLINIC, INC., Appellant.
    No. 13968.
    Missouri Court of Appeals, Southern District. Division Three.
    March 11, 1985.
    Motion for Rehearing or Transfer Denied March 22, 1985.

      Bruce Lawrence, Potashnick & Lawrence, Sikeston, for appellant.
    Joseph P. Fuchs, Dempster, Fuchs & Barkett, Sikeston, for respondent.
   CROW, Presiding Judge.

Delta Veterinary Clinic, Inc. (“DVC”), a corporation, appeals per § 287.495, RSMo Cum.Supp.1984, from an award of the Labor and Industrial Relations Commission (“Commission”) affirming an award of an administrative law judge (“judge”) of the Division of Workers’ Compensation. The award granted benefits under chapter 287, RSMo 1978, as amended (“The Workers’ Compensation Law,” § 287.010, Laws 1980, p. 361) to Charles L. Tyra (“claimant”) for a back injury found by the Commission to have arisen out of and in the course of claimant’s employment by DVC.

DVC maintains the Commission erred in finding that claimant’s injury arose out of and in the course of his employment, insisting that at the time the injury occurred, claimant was not performing duties for DVC, but was instead engaged in a chore for the “personal benefit” of two individuals, David Morris and David’s wife, Nanette. They are more fully introduced infra. DVC also contends the Commission erred in ruling that claimant’s injury did not occur while claimant was engaged in “exempt farm labor.” § 287.090.1(1), Laws 1981, p. 400.

DVC does not attack the Commission’s finding as to the extent of claimant’s disability, nor does DVC question the amount of compensation awarded.

DVC operates a clinic near Sikeston at which David Morris, a “practicing veterinarian,” practices his profession. Claimant, in his brief, asserts that DVC is “solely owned” by David and Nanette Morris. DVC’s reply brief states that David Morris, individually, owns DVC. Although we find nothing in the record substantiating either allegation, it is evident — and the judge found — that David Morris, at all times pertinent herein, was “chief operating officer” of DVC.

The injury whence this dispute arose occurred February 10, 1982. At that time, claimant had been in the employ of DVC for several weeks. David Morris explained claimant’s duties thusly:

“He was a veterinary assistant, which a small practice like mine incorporates a number of duties, anywhere from the routine cleaning of the office area to the kennel rooms to the preparation of surgery ' packs, assisting in surgery. Charles was as good as and excellent in assisting in surgery as any employee I had. Assisting in helping holding animals, duties of watching those animals that were in the clinic. By watching, general observation. And in the process of feeding and watering, if he noticed anything wrong, if the animal would eat or not eat, those type of observations.”

David and Nanette Morris, at all times pertinent herein, owned a farm near Scopus in Bollinger County, about 50 miles northwest of Sikeston. Cattle owned by the Morrises were kept at the farm. David Morris, on the morning of February 10, 1982, directed claimant to go to the farm and feed the cattle, using David’s “Scout,” a four-wheel drive truck, for transportation.

Claimant departed about 9:00 a.m., accompanied by his brother-in-law, Frankie Brown. En route, they stopped in Jackson and picked up cattle feed, which they hauled to the farm in a trailer hooked to the Scout.

Reaching the farm around noon, claimant and Brown began unloading the feed, which was packaged in 50-pound bags. During that process a bag slipped from claimant’s grasp, and as he “jerked and tried to catch it,” his back “snapped.” This caused pain that prevented claimant from working further. He sat in the Scout while Brown completed the task.

Afterward, Brown drove claimant to claimant’s home in Sikeston, reaching there around 3:30 p.m., or later. Claimant telephoned the clinic, informing David Morris’ secretary of the injury and explaining that Brown was returning the Scout.

Claimant eventually underwent spinal surgery necessitated by the injury. As DVC raises no issue about the degree of claimant’s disability or the amount of his medical expenses, evidence regarding those elements need not be summarized.

DVC argues, in its first point, that the work claimant was doing at the Morrises’ farm at the time claimant was injured was not a duty within the scope of his employment by DVC. Emphasizing that it owned neither the farm nor the cattle and that claimant was not at the farm administering any “veterinary aid,” DVC argues that claimant’s injury did not occur at a place where his employment by DVC required him to be and that claimant’s mission was for the personal benefit of “third persons,” not DVC. DVC points out that claimant, in times past, had gone to the farm with his children for recreational purposes and that, had claimant been injured on such a visit, he would have had no workers’ compensation claim against DVC.

In considering DVC’s argument, we note that claimant had no financial interest in the cattle, thus feeding them on February 10 was of no economic benefit to him. It is also evident that claimant was not at the farm on that date for recreation. He was there because he had been ordered there by David Morris, chief operating officer of DVC, to feed cattle owned by Morris and his wife.

Additionally, this was not the first instance where claimant had been ordered to the farm to feed the cattle. Claimant testified, without contradiction by David Morris, that during his employment by DVC he had fed the cattle several times. DVC paid claimant for his work on February 10 and for all of the earlier feedings. It is also noteworthy, as the judge astutely observed, that DVC benefited from claimant’s feeding of the cattle, inasmuch as David Morris was thereby free to perform profitable veterinary services at the clinic, which Morris would have been unable to perform had he been at the farm tending the cattle.

Our role in reviewing the Commission’s decision is clearly defined. We are constitutionally bound to determine whether it is authorized by law and whether it is supported by competent and substantial evidence upon the whole record. Mo. Const, art. V, § 18. Specifically, § 287.495, RSMo Cum.Supp.1984, provides, in pertinent part:

“1. ... Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.”

Additionally, it is well settled that we must view the evidence, with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commission’s award. Lieneke v. Evangelical Deaconess Hospital, 418 S.W.2d 142, 145[4] (Mo.1967); Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 296[3] (Mo.1965). The Commission is the sole judge of the credibility of the witnesses and the weight and value of the evidence. Ricks v. H.K. Porter, Inc., 439 S.W.2d 164, 167[5] (Mo.1969); Welborn v. Southern Equipment Co., 395 S.W.2d 119, 125-26[7] (Mo.banc 1965).

The pivotal issue in DVC's first assignment of error is whether the evidence, measured by the above standards, is sufficient to support the Commission’s determination that claimant’s injury — indisputably accidental — arose “out of and in the course of his employment” by DVC. § 287.120.1, RSMo 1978. On that issue, we find guidance in Nichols v. Davidson Hotel Co., 333 S.W.2d 536 (Mo.App.1960), a workers’ compensation case strikingly similar to this one.

In Nichols, a hotel was owned by a corporation. Shares in the corporation were owned in equal amounts by a father and three of his sons. A hotel employee, whose customary duties were those of “portér, bellhop, general handyman and factotum,” was occasionally assigned personal errands, including chauffeuring, for various members of the shareholders’ families. These tasks were performed during the employee’s working hours, for which he was paid by the corporation. The employee was killed in an automobile accident during one such mission, which came about under the following circumstances.

The wife of one of the shareholders was sponsor of a college sorority. She came to the hotel and, in the presence of her husband (treasurer of the corporation), asked the employee to drive some sorority rush-ees from the campus to a party more than 20 miles away. The treasurer obtained the consent of one of his shareholder-brothers, and the employee was furnished an automobile for the journey. The employee thereupon departed, fetched his driver’s license and chauffeur’s cap, picked up his passengers and delivered them to the appointed destination. During the return trip a few hours later, the fatal accident occurred.

The corporation argued (as does DVC in the instant case) that the employee’s death did not arise “out of and in the course of his employment,” § 287.120.1, RSMo 1949. Rejecting that contention, the Court, citing Foster v. Aines Farm Dairy Co., 263 S.W.2d 421, 423[4 — 6] (Mo.1953), stated that no all-embracing definition of the phrase “arising out of and in the course of his employment” had yet been framed. Every case involving the phrase must be decided upon its own particular facts and circumstances and not by some formula. Nichols, 333 S.W.2d at 543[6]. The opinion further pointed out that whatever the normal course of employment might have been at the hotel, the owners and managers had it within their power to enlarge the employee’s duties by arranging tasks outside the usual area. Id. at 546. Noting (1) the continual practice of sending the employee on errands for the private benefit of the shareholders and their families during the employee’s working hours, (2) the employer benefited in that the owners were able to remain at the hotel while the employee ran their errands, and (3) the fatal errand was assigned and undertaken during the employee’s working hours while he was being paid by the corporation, the Court concluded that the fatality occurred within the period of employment at a place where it was reasonable for the employee to be and while he was reasonably fulfilling the duties of his employment or engaged in activity incidental thereto. Id. The Court upheld the Commission’s decision awarding death benefits to the employee’s widow.

If the evidence in Nichols was sufficient to support the Commission’s finding that the accident there arose out of and in the course of the employee’s employment, we are satisfied that the evidence in the record before us is likewise sufficient to support such a finding.

Claimant, on the occasion in question, was ordered by David Morris, the chief operating officer of DVC, to go to the Morrises’ farm and feed the cattle, the same duty claimant had been assigned several previous times. The task was to be performed during the hours that claimant was working for, and being paid by, DVC— an arrangement consistent with past practices. Claimant, at the time he was injured, was exactly where he had been ordered to be, doing precisely what he had been directed to do. His efforts, like those of the employee in Nichols, benefited the employer in that, as earlier noted, David Morris was able to avoid going to the farm and was free instead to remain at the clinic.

Bearing in mind that the question for us to determine under DVC’s first point is whether the Commission’s finding that claimant’s injury arose out of and in the course of his employment by DVC is supported by competent and substantial evidence, and not whether a decision adverse to claimant on that issue would have had sufficient evidentiary support, Karch v. Empire District Electric Co., 358 Mo. 1062, 218 S.W.2d 765, 770 (1949); Davis v. McKinney, 303 S.W.2d 189, 193 (Mo.App.1957), we hold, on the authority of Nichols, that the evidence is sufficient to sustain the finding of the Commission. DVC’s first point is, accordingly, denied.

DVC’s second point asserts that even if we uphold the Commission’s finding that claimant’s injury arose out of and in the course of his employment, claimant is nonetheless ineligible for workers’ compensation benefits because the work he was doing at the time of his injury was “farm labor,” to which The Workers’ Compensation Law does not apply. § 287.090.1(1), Laws 1981, p. 400.

The principal case relied on by DVC in support of this contention is Vandeventer v. Melson, 330 S.W.2d 156 (Mo.App.1959). There, the employer, who operated a service station, hired an employee to service, grease and wash automobiles. Besides the service station, the employer owned and operated a farm. The employer assigned the employee numerous tasks unconnected with the service station, including cleaning a furnace at the employer’s home on the farm, delivering straw from the farm to the home of the employer’s mother and spreading it on her garden, helping move furniture, mowing grass at a school where the employer was a director, mowing the employer’s lawn, feeding hogs on the farm, capturing cattle that had escaped through a fence, picking corn, plowing, planting and hauling water. The employee received weekly wages which continued while he was working on the farm.

It was an injury on the farm that gave rise to the dispute in Vandeventer. The employee had been sent to the farm by the employer for the purpose of picking corn with a corn picker. When the employee was about to begin, he noticed it would be necessary to adjust a part on the picker. As he attempted to do so, a glove on one of his hands was caught in the shucking rollers and the hand was pulled into them, resulting in amputation of part of one finger and injury to another.

Vandeventer recites several well-established principles of law, equally applicable there and here. An employee may work in a dual capacity and be covered by the workers’ compensation law when engaged in one capacity and excluded when engaged in another, such as farm work, depending upon the nature of the work being performed at the time of the injury. 330 S.W.2d at 159[1]. The nature of the work must be determined from the whole character of the work the employee is required to perform and not simply from a consideration of the particular work he was performing at the time of the injury, nor the place where such work was being performed. Id. at 159[2]. Nor is the sole test the general nature and scope of the employer’s business. Id. at 159-60. A workman is not a farm laborer simply because the work he is doing at the moment is an incident of farm labor, if such work is a part of his principal employment which is not farm labor. Id. at 160[3]. But if the task he is performing is not a duty imposed upon him by his employer in the prosecution of the business for which he was employed, but is purely agricultural in nature, then he must be held to be a farm laborer. Id.

Vandeventer upheld a decision by the Commission that the employee was engaged in “strictly farming operations” at the time of the injury and was therefore ineligible for workers’ compensation benefits.

Though seemingly identical with the instant case on initial comparison, Vandeven-ter, in our opinion, is, upon reflection, not truly so.

In the case before us, claimant was not engaged in feeding the Morrises’ cattle at the time of his injury. A close examination of the record discloses that instead, claimant and Brown were unloading feed and storing it in a building. Brown testified:

“A ... We were unloading the two-wheel trailer and we had backed in where there was a house where he was storing hay in. He’d made, you know, a barn out of it. We had the trailer backed all the way up. We were almost to the bottom of the pile and Charlie grabbed a sack of feed.
Q Where were you?
A Well, I was in the little window. He was giving me the feed and I was stacking it.
Q Okay. He was handing it to you out of the trailer and you were stacking it.
A Yes, sir.
Q Okay. And what happened?
A Charlie went to pick it up and it slipped, and when it slipped he jerked his back and he fell down.
A And what happened then?
Q Well, I got down from the barn and helped Charlie out of the trailer.”

It is clear from Brown’s testimony that no cattle were being fed while the feed was being unloaded. Brown was in the storage building and claimant was in the trailer, handing the bags to Brown who was stacking them inside.

Had claimant been employed as a deliveryman by a farm supply company, and had he sustained injury while unloading feed in the course of such employment, it could hardly be contended that he was injured while performing farm labor, Conversely, had claimant been employed as a farmhand, and had he sustained injury while unloading feed for use on the farm where employed, it would be difficult to argue that he was not injured while performing farm labor. As observed in Blew v. Conner, 328 S.W.2d 626, 629 (Mo. banc 1959), a farm laborer does not step out of his own part while doing carpenter work for his farmer employer in the repair of farm buildings; neither does the carpenter who comes onto the farm for the job of carpentry and nothing more. One continues a farm laborer, and the other does not become one.

The same rationale was applied in Albin v. Hendrick Brothers Implement Co., 382 S.W.2d 734 (Mo.App.1964), where an employee of a farm implement dealer sustained a hand injury while operating a corn picker owned by the dealer. The injury occurred on the farm of a potential customer, to whom the employee was demonstrating the operation of the picker. In affirming an award by the Commission of workers’ compensation benefits to the employee, the opinion points out that while corn picking performed by a farmhand as a part of his duties is considered to be an employment of farm labor, corn picking when merely an incident of a demonstration of a farm machine by a farm implement dealer’s employee to a potential purchaser of the machine is not an employment of farm labor. 382 S.W.2d at 739. A workman is not a farm laborer simply because the work he is doing at the moment may be labor on a farm if such work is a part of his principal employment which is not farm labor. Id.

In the instant case the pivotal issue in DVC’s second assignment of error is whether, given the general character of claimant’s employment as a veterinary assistant, there is sufficient evidence to support the Commission’s finding that in unloading and storing cattle feed on the Mor-rises’ farm, claimant was not engaged in performing farm labor.

As best we can determine from the record, claimant had been employed by DVC for a period between 6 and 10 weeks prior to his injury. Asked how frequently David Morris had sent him to the Morrises’ farm during that interval, claimant replied: “I believe I was going like one time a week. In bad weather maybe twice a week.”

It is thus evident that although delivering feed to the Morrises’ farm and feeding their cattle were duties incidental to claimant’s employment by DVC, claimant was not hired by DVC as a farmhand.

Bearing in mind that at the time of his injury, claimant was not feeding cattle, but was unloading and storing feed, which may or may not constitute farm labor depending on the whole character of the employment of the worker engaged therein, and that by assigning claimant that task, David Morris was free to remain at the clinic, we cannot say that the Commission’s finding that claimant, when injured, was not engaged in farm labor lacks substantial evidentiary support.

We emphasize that we need not, and do not, decide whether the Commission’s award could be sustained if claimant had been feeding the Morrises’ cattle at the time the injury occurred.

DVC’s second point, albeit extremely close, is denied.

The Commission’s award is affirmed.

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

TITUS, J., dubitante.


author: FLANIGAN, Judge.

text:
    Lorena Harriet RIDENHOUR, Plaintiff-Respondent, v. COLSON CASTER CORPORATION, Defendant, and M.C. Rippeto Company, Inc., Defendant-Appellant.
    No. 13453.
    Missouri Court of Appeals, Southern District, Division One.
    March 14, 1985.
    Motion for Rehearing or to Transfer Denied on April 2, 1985.
    Application to Transfer Denied April 30, 1985.

      Erwin L. Milne, Stockard, Andereck, Hauck, Sharp and Evans, Jefferson City, for defendant-appellant.
    Dan L. Birdsong, Thomas, Birdsong, Clayton & Haslag, P.C., Rolla, for plaintiff-respondent.
   FLANIGAN, Judge.

Plaintiff Lorena Ridenhour brought this action for the wrongful death of her husband Lester Ridenhour, who died on December 23, 1980, as a result of injuries which he sustained the preceding day when he fell from a scaffold owned by defendant M. C. Rippeto Company, Inc., (“Rippeto”). Decedent, an iron worker, was employed by McCarthy Brothers Construction Company, the general contractor for the construction of an addition to the Phelps County Memorial Hospital at Rolla. Rippeto was a plastering subcontractor for McCarthy Brothers.

The second defendant was Colson Caster Corporation, (“Colson”). Plaintiff claimed that Colson had manufactured the casters attached to the legs of the scaffold. The jury found the issues in favor of plaintiff and against Rippeto and awarded plaintiff $150,000. The jury denied plaintiff recovery on her claim against Colson. Only Rippeto appeals.

Rippeto contends that portions of Instruction 7, plaintiff's verdict-director against Rippeto, were not supported by the evidence and that, by reason of these evi-dentiary deficiencies, plaintiff failed to make a submissible case against Rippeto. Instruction 7 reads:

“INSTRUCTION NO. 7

Your verdict must be for plaintiff on her claim against M.C. Rippeto Company, Inc. if you believe:

First, defendant M.C. Rippeto Company, Inc. furnished a scaffold which had a caster on it to plaintiff’s husband, Lester Ridenhour, for use, and
Second, the caster had been improperly welded and was therefore dangerous when put to a use reasonably anticipated, and
Third, the caster was used in a manner reasonably anticipated, and
Fourth, plaintiff’s husband, Lester Ri-denhour, did not know and by using ordinary care could not have known of such dangerous condition, and
Fifth, defendant M.C. Rippeto Company, Inc. knew or by using ordinary care could have known of such dangerous condition, and
Sixth, defendant M.C. Rippeto Company, Inc. failed to warn plaintiff’s husband, Lester Ridenhour, of such dangerous condition, and
Seventh, defendant M.C. Rippeto Company, Inc. was thereby negligent, and
Eighth, as a direct result of such negligence plaintiff’s husband, Lester Ri-denhour, died

unless you believe plaintiff is not entitled to recover by reason of Instruction No. 8.”

Instruction 8, given at the request of Rippeto, submitted, as a defense, contributory negligence on the part of Lester Ri-denhour.

Rippeto contends that there was no showing that Rippeto derived any commercial benefit from Ridenhour’s use of the scaffold; that his use of the scaffold was the product of a “gratuitous bailment”; that the bailor in a gratuitous bailment is not liable to the bailee for injuries arising out of a defect in the bailed article unless the bailor had actual knowledge of the defect and failed to warn the bailee of it. Accordingly, argues Rippeto, paragraph Fifth of Instruction 7 is erroneous in not confining its requirement to actual knowledge on the part of Rippeto of the dangerous condition, that is, the improper weld in the caster. Constructive knowledge of that defect, Rippeto argues, is insufficient to impose liability on Rippeto and paragraph Fifth improperly hypothesized constructive knowledge as a sufficient alternate finding. Rippeto further argues that even if the bailment of the scaffold was a mutual benefit bailment, imposing upon the bailor a duty to use ordinary care to inspect the scaffold for defects, the defect here was one which would not have been disclosed by such an inspection.

Attached to the bottom of each of the four legs of the scaffold was a “rolling caster.” Plaintiffs evidence showed that the scaffold, while being used in the ordinary manner by Ridenhour and a co-worker, “tilted and fell” causing Ridenhour to “fall over backwards, striking his head on the concrete.” Plaintiff’s evidence also showed that the tilting of the scaffold was caused by a defect in one of the casters. The defect consisted of an improper weld.

The leg of the scaffold is bolted into a “box” which is a component of the caster. The box was welded to a lower component of the caster, which contained the wheel. The defective weld between the box and the lower component “was covered — you could not see it when it was intact,” according to plaintiffs witness Leon Henderson.

Plaintiffs witness Robert Wolf, an expert in mechanical and metallurgical engineering, testified that the tilting of the scaffold was due to a “metal failure” when the defective caster separated from its top and broke. According to Wolf, the welded surface, which was circular, should have been welded for the entire circle but only “10 to 20 percent” of the circle was welded.

Wolf testified that in his opinion the weld “was part of the manufacturing process,” but he also stated that it was possible that the defective welding took place some time later when the caster was repaired and that “it was the repair that failed.” Wolf testified that the welded area would not be open to the view of workmen. “You would have to take the caster off [of the leg of the scaffold] and look down to see the weld. You would have to take the caster apart and you would have to have some expertise, more than the ordinary workman, to see that there was a defect.”

Plaintiffs evidence failed to show specifically when the defective welding took place or the identity of the welder. Instruction 7 did not require a finding that Rippeto did the defective welding.

Immediately following the accident McCarthy Brothers took possession of the scaffold, including the casters. Plaintiff’s expert Wolf was permitted to inspect and photograph that equipment. The accident was investigated by the Occupational Safety and Health Administration, (“OSHA”). After that investigation was completed, the scaffold, including the defective caster, was returned to Rippeto. While in Rippe-to’s possession, the defective caster was lost.

Plaintiff’s witness Fred Seitz, a Colson employee, looked at photographs of the defective caster. His testimony was that the broken caster was not a Colson caster because Colson “has never welded a box to the top of a swivel type caster.” On Col-son casters “the box is held to the top of the caster by a rivet.” Plaintiff’s witness Bill Green, an employee of Rippeto, testified that the scaffold was new when purchased by Rippeto and, as far as he knew, Rippeto had not welded the box to the lower portion of the caster.

Plaintiff’s witness Charles Ousley, a foreman for Rippeto, testified that Ridenh-our asked to borrow the scaffold and Ous-ley gave permission. Ousley also testified, “It is common to borrow equipment between contractors and subcontractors. It prevents having too much equipment on the job.” Plaintiff also introduced evidence that McCarthy Brothers “loaned Rippeto our welders, cutting torches and ladders. It saved having two sets of equipment on the job.”

The contract between McCarthy Brothers and Rippeto required Rippeto to furnish the necessary equipment for the performance of Rippeto’s work but did not require Rippeto to furnish equipment for the employees of McCarthy Brothers.

Evidence introduced by defendant Colson showed that Colson did not manufacture casters “with a weld on it in this particular area,” and that if the defective caster was a Colson caster, the defective welding took place “after it left the Colson manufacturing plant — some time after it left Colson.”

The briefs of the parties cite no Missouri case involving the liability of a subcontractor to an employee of the general contractor for injuries sustained by the employee arising out of a defect in a piece of equipment bailed to him by the subcontractor under the circumstances present here.

There is substantial out-state authority for the proposition that a subcontractor whose equipment is used gratuitously by an employee of another contractor or subcontractor on the same project is not, as a general rule, liable for injuries sustained by the user as a result of the defective condition of the equipment where the subcontractor lacked actual knowledge of the defective condition, because the user in such a case is a mere licensee or gratuitous bailee. Arthur v. Standard Engineering Co., 193 F.2d 903 (D.C. Cir.1951); Hill v. Lyons Plumbing & Heating Co., 457 S.W.2d 503 (Ky.1970); Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4 (1943); Eddy v. John J. Brady Plastering Co., 111 Ohio App. 190, 171 N.E.2d 722 (1959); Olivier v. Snowden, 426 S.W.2d 545 (Tex.1968); 13 Am.Jur.2d Building & Construction Contracts § 137, p. 128; 32 A.L.R.2d 414 (Duty and liability of subcontractor to employee of another contractor using equipment and apparatus of former). In Correa v. Stephens, 429 P.2d 254 (Alaska 1967), the defendant, a general contractor, was held not liable to plaintiff, himself a subcontractor, for injuries caused by a defect in the ladder plaintiff borrowed from defendant who had no actual knowledge of the defect.

In Arthur, Hill, Brauner, Eddy, and Olivier, the defendants, as owners of the borrowed and defective equipment, were absolved of liability where they lacked actual knowledge of the defect, although a custom existed for contractors and subcontractors and their respective employees to borrow equipment from each other. Arthur, Brauner, Eddy, and Olivier were defective scaffold cases. In Correa and Hill a ladder was the borrowed defective equipment.

The rationale of the foregoing cases is consistent with the following rule, expressed in 8 Am.Jur.2d Bailments § 162, p. 894:

“Where a bailment is purely gratuitous, and created for the exclusive benefit of the bailee, as where articles are loaned to another simply for his own use, without any reward or compensation being received from him by the lender, the bailor’s only duty with respect to defects is to inform the bailee of any of which he is aware and which might make the use of the subject of the loan perilous to the bailee or his servants. The ground of this obligation is that when a person lends he ought to confer a benefit, not do a mischief. But the obligation of a mere lender goes no further than this, and he cannot therefore be made liable for not communicating anything he did not in fact know, whether he ought to have known it or not.” See, also, 8 C.J.S. Bailments § 25b, p. 386.

In Arthur v. Standard Engineering Co., supra, a leading case, plaintiff, an employee of a subcontractor, sustained injury as a result of a defect in a scaffold owned by defendant, another subcontractor. There was evidence that it had long been the custom for a scaffold constructed by one subcontractor to be used by the employees of other subcontractors. There was also evidence that defendant used ladders owned by the subcontractor which employed plaintiff.

The court pointed out that a difference exists between the duty owed by an invitor to an invitee with respect to defective appliances furnished the latter and the duty owed by a licensor to a licensee with respect to defective appliances furnished the latter. The invitor owes the invitee the duty of furnishing him with a reasonably safe appliance and is liable for injuries caused by the negligent failure to perform that duty. On the other hand a licensor is not liable for the injuries of a mere licensee caused by a defective appliance furnished by the licensor unless the licensor was guilty of active negligence which caused the injury. Arthur v. Standard Engineering Co., supra, at p. 905.

The court then addressed the issue of whether the plaintiff, in using the borrowed scaffold, was a licensee or an invitee. The court pointed out that the Court of Appeals of New York, in Quigley v. Thatcher, 207 N.Y. 66, 100 N.E. 596 (1912), invoked the so-called “reasonable convenience” rule and held that a general contractor was liable to the employee of a subcontractor injured by a defective scaffold which a general contractor had erected. The scaffold was so constructed and located that the subcontractor “must of necessity or under the requirements of reasonable convenience in the performance of his work use the same,” Arthur v. Standard Engineering Co., supra, at p. 905. The New York court held the general contractor should have anticipated such use and was under a duty to use reasonable care to construct it so it would be safe for those who would naturally and customarily use it in the course of the work. In McGlone v. Angus, 248 N.Y. 197, 161 N.E. 469 (1928), under similar circumstances, a subcontractor was held liable to an employee of another subcontractor for injuries caused by a defect in a scaffold erected by the former.

The court, in Arthur v. Standard Engineering Co., supra, said that neither of the New York opinions had considered the question of the legal status of the subcontractor’s injured workman — whether he was a licensee or an invitee. Rejecting the New York approach, the court adopted “the mutual benefit test” for determining whether the injured workman was a licensee or an invitee. The court said that although Arthur had been given permission to use the scaffold, that fact alone established no higher relation than that of mere licensor and licensee. The court quoted the following language from Bennett v. Louisville & N. Railroad Co., 12 Otto 577, 584-585, 102 U.S. 577, 584-585, 26 L.Ed. 285 (1880): “The principle * * * appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.”

The court then discussed the significance of the general custom for “scaffolds, ladders, and such, which were built or provided by one subcontractor, to be utilized by employees of other subcontractors.” The existence of that custom did not make Arthur an invitee. At p. 907 the court said:

“The existence of such a custom simply permits consent to the use to be implied in instances where consent was not expressly given....

“There was no evidence tending to show that the Standard Engineering Company had any interest in, or derived any benefit or advantage from, the work done by Arthur and the other Foley employees as they stood on the scaffold. So, under the mutual benefit test, Arthur was not an invitee. It was proved, however, that the steamfitters had used the electricians’ ladders, from which it is argued that Standard Engineering gave the use of the scaffold as a quid pro quo for its use of the ladders, and in that fashion derived benefit from Arthur’s presence on the plank.

“The argument pushes the mutual benefit theory too far, we think. Reciprocal use of different pieces of equipment simply shows the custom in operation. From it, consent by each subcontractor to the use of its equipment by other subcontractors may be implied, just as it may be implied from proof of the custom alone in cases where there was no actual reciprocal use or no express consent.

“The true test under the mutual advantage theory is whether the owner of a scaffold or other appliance receives benefit or advantage from the permitted use by another of that particular piece of equipment. If so, the user is an invitee; if not, he is a licensee.” Plaintiff was denied recovery.

A case factually similar to the case at bar is Olivier v. Snowden, supra, where plaintiff Snowden, an employee of the general contractor, was injured when using a defective scaffold owned by defendant Olivier, a subcontractor. Snowden claimed that his legal status was that of invitee because of the existence of a custom “allowing mutual use of scaffolding.” That custom, argued Snowden, imposed upon the defendant a duty to furnish all employees, including the employees of the general contractor, a safe place to work. The Texas court rejected that argument and approved the holding in Arthur v. Standard Engineering Co., supra. Citing the Restatement of Torts, Second, including § 392, the court said the Restatement “classifies such a situation as we have here as being comparable to a loan of chattels.” The court said, at p. 550:

“The law is well settled that, ordinarily, one is not liable for injuries resulting from the defective condition of a chattel loaned to another, where the one loaning the chattel did not in fact know of the defective condition, whether he ought to have known it or not, and such one is under no duty to examine the condition of the chattel before lending it.”
“The comment under Section 392 of the Restatement also makes it clear that before liability of a person who supplies a chattel can attach, under these circumstances, there must be evidence showing that the use of the chattel is one in which the supplier has a business interest.”
“Furthermore, the facts here do not meet the true test under the mutual advantage theory. We cannot agree with the theory that the mutual use of scaffolds as described here inured to the benefit of Olivier merely because such use of scaffolds would result in saving the extra cost of tearing down another contractor’s scaffold and erecting one in its place. Reciprocal use of different pieces of equipment owned by different contractors simply shows the custom in operation. Prosser on Torts (3rd Ed.) at page 396, says: ‘The “business” on which the visitor comes must be one of at least potential pecuniary profit to the possessor.’ ” (Emphasis in original)

The court found no evidence that the work which Snowden was performing resulted in any pecuniary benefit to Olivier.

In Olivier, a dissenting judge, in whose opinion three other judges joined, stated that the various contractors benefited from the reciprocal use of each other’s scaffolds by saving the time and expense of erecting their own scaffolds when an existing scaffold would serve the purpose. The dissenters stated that there was evidence that the defendant acquiesced in the custom of sharing a scaffold for business reasons to his own indirect advantage, and not merely to accommodate or benefit the plaintiff. It was the view of the dissenting judges that when it is shown that it is the custom of workmen of different crafts or employers to use the scaffolds of the other, the scaffolds should be constructed in a reasonably safe manner for all workers who might reasonably be foreseen as using them in an ordinary manner.

Section 392 of the Restatement of Torts, Second, set forth in footnote 1, imposes liability, under given circumstances, upon a supplier of a chattel “to be used for the supplier’s business purposes.” Comment e under § 392 reads:

“e. Supplying tools for workmen. One who employs another to erect a structure or to do other work,' and agrees for that purpose to supply the necessary tools and temporary structures, supplies them to the employees of such other for a business purpose. This is true irrespective of whether the structure or work when finished is to be used for business or residential and social purposes. On the other hand, if it is understood that the person who is to do the work is to supply his own instrumentalities, but the person for whom the work is to be done permits his own tools or appliances to be used as a favor to the person doing the work, the tools and appliances are supplied as a gratuity and not for use for the supplier’s business purposes.” (Emphasis added)

Under the foregoing authorities it was incumbent upon plaintiff, in seeking to impose liability on Rippeto, to prove that Rippeto had actual, and not merely constructive, knowledge of the defect in the caster and failed to give a proper warning.

In Clark v. Granby Mining & Smelting Co., 183 S.W. 1099, 1101 (Mo.App.1916), a case not factually in point, the court set forth, in language substantially similar to that expressed in 8 Am.Jur.2d Bailments § 162, p. 894, quoted supra, the rules governing the liability of a gratuitous bailor to a bailee injured by reason of a defect in the article bailed. The court then said:

“Where, however, the bailment is for the mutual benefit of both bailor and bailee, the former’s obligation is correspondingly enlarged; and it is therefore his duty to deliver the thing hired in a proper condition to be used as contemplated by the parties. For a failure to do so, he is justly held liable for the damage directly resulting to the bailee from its unsafe condition. This distinction is fundamental and seems to be generally recognized.”

There is a paucity, or perhaps non-existence, of Missouri cases, other than automobile cases, dealing with injuries to a bailee arising out of a defect in a gratuitously bailed article. Perhaps that is due to the fact that the legal requirement confronting the bailee to adduce proof of the bailor’s actual knowledge of the defect is rarely met.

In mutual benefit bailment situations the bailor has been held liable, on a negligence theory, to the bailee where the defect in the bailed article was created by the bailor. Gilpin v. Pitman, 577 S.W.2d 72 (Mo.App.1978). In Gabbard v. Stephenson’s Orchard, Inc., 565 S.W.2d 753 (Mo.App.1978), the bailor of a defective ladder was held liable, on the theory of strict liability, to the injured bailee, where the bailor derived economic benefit from the bailment. The court equated the liability of a mutual benefit bailor with that of a lessor and quoted with favor language from a California case to this effect: “It makes good sense to impose on the lessors of chattels the same liability for physical harm which has been imposed on the manufacturers and retailers.”

In Katz v. Slade, 460 S.W.2d 608 (Mo. 1970), the court, referring to the doctrine of strict liability in tort, said at p. 611: “It has never been applied in this State to situations involving mutual benefit bail-ments, leases or rentals of the products of industry.” The holding in Katz was that a bystander could not recover under the doctrine of strict liability in tort from a municipal corporation which was the owner-lessor of a golf cart for injuries sustained when struck while the cart was being operated by a third party-lessee as a result of a defect rendering the vehicle unfit for its intended use.

In Whitney v. Central Paper Stock Co., 446 S.W.2d 415 (Mo.App.1969), a defendant, who had furnished a trailer to the employer of the injured plaintiff for the economic benefit of defendant, was held to have the duty “to furnish a trailer which was reasonably safe for the intended use by [plaintiffs employer’s] employees.” The defendant, said the court, at p. 418, “was required to exercise ordinary care to determine whether the trailer was in fact safe at the time of its delivery to the employer’s premises, and if not to either repair it or warn of the danger.”

At least with respect to the gratuitous bailment of an automobile, there is Missouri authority for the proposition that evidence of bailor’s actual knowledge of a defect in the automobile is not necessary if there is a showing of constructive knowledge, coupled with proof of other elements of the cause of action. In Vogelgesang v. Waelder, 238 S.W.2d 849 (Mo.App.1951), the court said, at p. 855:

“The following facts must be proven in order to fix this type of liability upon the owner of an automobile: (1) the ownership of the car; (2) the gratuitous bailment; (3) the existence of the defective condition at the time of the bailment; (4) knowledge by the owner at that time of the existence of the defective condition. See Bolin v. Corliss Co., 262 Mass. 115, 159 N.E. 612 (1928). This may be actual or constructive knowledge. If constructive knowledge is relied upon there must be proof either that the defect had existed for such a length of time that the owner in the exercise of ordinary diligence could or should have known of it, or that the defect was of such a nature that it would have been revealed by an ordinary inspection, and that such inspection was not made. (5) The connection between the defective condition and the injury or damage (proximate cause).” (Emphasis in original) But see Wright v. Newman, 735 F.2d 1073 (8th Cir.1984), discussed infra.

In Vogelgesang the plaintiff failed to prove requirements (3) and (4) and thus made no submissible case against the bail- or.

As Ridenhour s employer, McCarthy Brothers had a non-delegable duty to provide him with reasonably safe equipment, Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954, 959 (1950); Wright v. Kansas City Structural Steel Co., 236 Mo.App. 872, 157 S.W.2d 582, 590 (1941), and there is Missouri authority to the effect that even if the scaffold had been rented by Rippeto to McCarthy Brothers, no masterservant relationship existed between Rippeto and Ri-denhour. Blankenship v. St. Joseph Fuel Oil & Mfg. Co., supra, 232 S.W.2d at 957; Komeshak v. Missouri Petroleum Products Co., 314 S.W.2d 263, 268 (Mo.App.1958).

Although Missouri has a statute dealing with scaffolds, § 292.090 RSMo 1978, it has been held that a plaintiff may not claim the benefit of the violation of that statute or a companion statute in the same 1891 act where no employee-employer relationship existed between plaintiff and defendant. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1 (1909); Behre v. Hemp & Co., 191 S.W. 1038 (Mo.App.1917).

In Wright v. Newman, 735 F.2d 1073 (8th Cir.1984), a case based on Missouri law, the court said that § 392 of the Restatement, Second, of Torts, quoted in footnote 1, “is a fair statement of Missouri law.” The case involved the liability of Ford Motor Credit Co., (FMCC), for injuries allegedly due to a defective towing mechanism on a pickup truck supplied, that is bailed, by FMCC to one Scheall.

At p. 1080 the court said:

“Section 392 has several requirements, all of which must be fulfilled before liability can be imposed. In the context of this case, appellants must show at trial that (1) FMCC is a supplier; (2) the pickup was supplied to Scheall for FMCC’s business purposes; (3) the pickup was used in the manner for which and by persons for whose use it was supplied; (4) the towing mechanism was defective, the defect was discoverable on inspection, and the defect caused the accident; and (5) FMCC failed to inspect the towing mechanism and failed to inform Scheall of the defect.”

The court also referred to § 402A of the Restatement, Second, of Torts, which imposes strict liability on commercial sellers of defective goods which are unreasonably dangerous to users, consumers, and their property. Citing Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 364 (Mo.1969), the court said that Missouri had adopted the substantive law on strict liability set forth in § 402A. The court also cited Gabbard v. Stephenson’s Orchard, Inc., supra, and said that Missouri “has extended the class of commercial distributors liable under 402A beyond sellers and manufacturers to commercial lessors and bailors.” Wright v. Newman, supra, at p. 1077.

Discussing the relationship between §§ 392 and 402A the court said, at p. 1080:

“There would appear to be a distinction between suppliers within the judicially extended meaning of section 402A and suppliers within the meaning of section 392. Suppliers in the original distribution chain are held strictly liable under section 402A for injuries caused by any defects, discoverable or not, which are ultimately traceable to the manufacturer. As explained previously, strict liability is predicated upon the distributors’ links to the manufacturer. The supplier’s liability under section 392, on the other hand, is based upon the failure to make a reasonable inspection and warn of any discoverable defects. Lynden Transport, Inc. v. Haragan, 623 P.2d 789, 798 (Alaska 1981). The class of defendants subject to liability under section 392 is larger than the class of defendants subject to strict liability, and includes the strict liability defendants, as well as contractors and shippers. W. Prosser, Law of Torts § 104, at 676 (4th Ed. 1971). The scope of liability is narrower, however, because liability attaches only when the dangerous condition was discoverable when the instrumentality was transferred.”

Alluding to the requirement of § 392 that the chattel be supplied to the bailee for the business purposes of the bailor, the court said, at p. 1080: “The critical fact is whether FMCC ‘derived either directly or indirectly, some form of pecuniary gain in its own business through the use of the chattel.’ ”

This court adopts the rationale of Arthur v. Standard Engineering Co., supra, and the other out-state authorities cited above which are consistent with that decision. A contrary holding, making it the duty of a subcontractor at least to conduct a reasonable inspection of his equipment before permitting it to be borrowed by employees of other contractors or subcontractors, might undermine a custom of mutual lending. This court holds that Rippe-to’s scaffold was not supplied to Ridenhour for Rippeto’s “business purposes,” § 392 of the Restatement, Second, of Torts, Wright v. Newman, supra, and that the bailment of the scaffold was gratuitous. It follows that paragraph Fifth of Instruction 7 was reversibly erroneous in not limiting the requirement of that paragraph to actual knowledge, on the part of Rippeto, of the defect. It is, therefore, unnecessary to determine whether the instruction is otherwise erroneous or whether there is soundness in Rippeto’s alternate argument that the defect was not of the type discloseable by reasonable inspection even if there was a mutual benefit bailment here.

Since the plaintiff may have simply mistaken her legal theory and since, on retrial, it is. possible, particularly in light of the Colson evidence, that plaintiff might be able to prove Rippeto’s actual knowledge of the defect, this court exercises its discretion to reverse and remand rather than to reverse outright. Morris v. Shell Oil Company, 467 S.W.2d 39, 43 (Mo.1971); Katz v. Slade, supra, at p. 614; Whitney v. Central Paper Stock Co., supra, at p. 420.

The judgment is reversed and the cause remanded for further proceedings consistent herewith.

TITUS, P.J., and GREENE, J., concur.

      . "§ 392. Chattel Dangerous for Intended Use One who supplies to another, directly or through a third person, a chattel to be used for the supplier's business purposes is subject to liability to those for whose use the chattel is supplied, or to those whom he should expect to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied
      (a) if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied, or
      (b) if he fails to exercise reasonable care to discover its dangerous condition or character, and to inform those whom he should expect to use it.” (Emphasis added)