Fielder v. Production Credit Ass'n

• Decision Date: 05 June 1968
• Docket Number: No. 8773,8773
• Citation: 429 S.W.2d 307
• Parties: Eula M. FIELDER, Plaintiff-Respondent, v. PRODUCTION CREDIT ASSOCIATION and Sentry Insurance Company, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 307

429 S.W.2d 307

Eula M. FIELDER, Plaintiff-Respondent, v. PRODUCTION CREDIT ASSOCIATION and Sentry Insurance Company Defendants-Appellants.

No. 8773.

Springfield Court of Appeals, Missouri.

June 5, 1968.

Dalton, Treasure & Bullard, James C. Bullard, Kennett, for appellants.

Ford, Ford & Crow, Wendell W. Crow, Kennett, for respondent.

TITUS, Judge.

Bennie and Eula Fielder, husband and wife, performed services as janitor and janitress at the offices of Production Credit Association in Kennett, Missouri, from April 1, 1964 until April 3, 1965, on which latter date Mrs. Fielder fell and was injured. The Division of Workmen's Compensation entered an award declaring 65-year-old Eula had sustained permanent total disability as the result of the accident, and ruled Rpoduction Credit Association and its insurer, Sentry Insurance Company, liable for necessary medical aid in the amount of $818.29, for continuing medical care and treatment, and for the payment of compensation to Mrs. Fielder in the sum of $16 per week for 300 weeks and thereafter the sum of $18 per week for the remainder of her life. This award was affirmed on review by the Industrial Commission of Missouri, and its final award was affirmed upon appeal by the Circuit Court of Dunklin County. Production Credit Association and its insurer, in appealing from the circuit court judgment, complain: 'I. The overwhelming weight of the evidence shows that Eula Fielder was not an employee of Production Credit Association. Ii. The Workmen's Compensation Referee erred by admitting hearsay testimony which was not admissible nor binding upon Production Credit Association. III. The disability award by the Industrial Commission is contrary to the overwhelming weight of the evidence.'

Respondent's motion to dismiss the appeal or affirm the judgment per Rule 83.09 ¹ poses our initial onus. With accuracy respondent says appellants' brief does not contain 'a fair and concise statement of the facts without argument' (Rule 83.05(a)(2) and (c)), the 'points relied on,' supra in haec verba, do not undertake to show * * * wherein and why' the complained of actions were erroneous (Rule 83.05(a)(3) and (e); Bowers v. Spinaio, Mo.App., 421 S.W.2d 790, 791(3)), and the statement of facts and argument in the brief often omit 'specific page references to the transcript on appeal' as required by Rule 83.05(a)(4) and (d). We note, sua sponte, that while Rule 83.05(a)(4) directs 'all authorities discussed in the argument shall be cited under 'Points Relied On," appellants include twelve citations of authority in their brief under 'Argument' which do not appear in their points. It is an eternal source of wonderment why counsel will accept a client's trust to appeal a cause and chance its banishment and accompanying embarrassment by noncompliance with the simple procedures prescribed by the Supreme Court. The compulsory verb 'shall' is copiously employed throughout Rule 83.05, but Rules 83.09 and 83.24 were seemingly penned stilo inverso to permit modification of the rules if justice requires or to facilitate disposition of cases on their merits. Unless infraction of the rules be so gross as to incite incensement, the trend of appellate courts is toward tolerance. Of course, solicitude for the errant brief scribe is unjust to counsel who labor to observe the rules. Nevertheless, our primary concern is with the cause of the litigants and we reluctantly in this instance overrule respondent's motion.

Ere proceeding to the evidence, we first consider appellants' contention the referee 'erred by admitting hearsay testimony which was not admissible nor binding upon Production Credit Association.' This abstraction, according to the argument, alludes to testimony concerning conversations had by Mr. and Mrs. Fielder with Lawson Brents. Initial attempts to relate these verbal exchanges were thwarted because, at that time, there was no evidence independent of hearsay and Brents' extrajudicial declarations regarding his relationship to Production Credit Association. The order in which evidence is received lies largely within the discretion of the trial court, and the reception into evidence of testimony as to these conversations after Brents' sworn testimony established his agency with Production Credit Association is not inconsistent with the preliminary ruling of the referee. 31A C.J.S. Evidence § 344, p. 843; 29 Am.Jur.2d, Evidence, § 663, p. 715. Under this 'point' appellants cite only Schwarze v. May Department Stores, Mo.App., 360 S.W.2d 336, 339(6), and Rosser v. Standard Milling Company, Mo., 312 S.W.2d 106, 110(2), each of which recites the accepted rule that neither the fact nor scope of agency can be established by the extrajudicial declarations of the alleged agent. Also see Linam v. Murphy, 360 Mo. 1140, 1149(3), 232 S.W.2d 937, 943(14); 3 Am.Jur.2d, Agency, § 354, p. 711; 29 Am.Jur.2d, Evidence, § 663, pp. 715--716. But the fact that such declarations may not be used to prove agency and the scope thereof does not mean agency and its bounds cannot be established on trial by the testimony of the agent himself. Crull v. Massman, Mo.App., 189 S.W.2d 1009, 1016; C.I.T. Corporation v. Hume, Mo.App., 48 S.W.2d 154, 157; 3 Am.Jur.2d, Agency, § 353, p. 711. 'As a general proposition * * * the knowledge of the agent is imputed to the principal' (Kearns v. Sparks, Mo.App., 260 S.W.2d 353, 358), and 'principals are presumed to have knowledge of all * * * declarations made by and to their agents when acting in relation to the subject matter of the agency and within the scope of an actual or apparent authority conferred.' 3 C.J.S. Agency § 320h, p. 271. Consequently, 'after the party alleging the agency has made a prima facie case of agency against the principal, any declarations made by the agent in the prosecution of, and relative to the business contemplated by such agency, are admissible against the principal.' Peck v. Ritchey, 66 Mo. 114, 118(1); State ex rel. Kurz v. Bland, 333 Mo. 941, 949, 64 S.W.2d 638, 642; 29 Am.jur.2d, Evidence, §§ 662--663, pp. 712--716.

Lawson Brents was called as an adverse witness by the respondent and testified he then was and had been since August 1963 Branch Manager of the Kennett office of Production Credit Association. His duties, inter alia, included interviewing job applicants 'with respect to employing persons for the Kennett office.' Brents related, 'I have hired (employees) with the okay from the General Manager at Caruthersville.' He said he was without authority to 'fire or hire anybody without the general manager's okay,' but there is no evidence the Fielders were ever aware of this limitation on Brents' agency. No disapproval was ever made of any recommendation by Brents for the employment of personnel, and when asked the identity of the person who told the only discharged employee 'he was no longer needed,' Brents testified, 'I did.'

Mrs. Fielder, shortly before April 1, 1964, talked by telephone with Lawson Brents concerning the need for custodial help at the Kennett offices of Production Credit Association. An appointment was made for Brents to interview 'the Fielders.' When the interview by Brents was subsequently held with the Fielders, the discussion, according to Brents, concerned 'cleaning our office as custodian. * * * We of course had an opening for a custodian and they applied for the job and I went over the building and showed what I expected and how I wanted it taken care of and stated that the salary was $40.00 per month. * * * They were both present. * * * They stated that they worked together.'

Mr. and Mrs Fielder commenced working at the offices of Production Credit Association in Kennett on April 1, 1964, and continued to do so until the accident occurred one year later. Since the accident Mr. Fielder has alone done the janitor work at the same salary. Production Credit Association furnished the cleaning supplies used by the Fielders. Brents described the work performed by Eula Fielder as 'cleaning desks or carrying out wastepaper.' Mr. Fielder said his wife 'dusted desks off, chairs. They have a kitchenette there. She washed the dishes up, coffee perculator, cleaned that up and worked like that. * * * Swept the floor.'

Brents did 'not directly' have any conversations with the Fielders as 'to who was to receive the paycheck.' All such checks, however, were made payable to Mr. Fielder. When asked at what time he contacted 'the general office with respect to the custodian position after your interview with the Fielders,' Brents replied, 'I probably called them. I don't remember.' He said he had 'never received any approval on any kind of employment for Eula Fielder.' After the Fielders had worked at the offices fifteen days, Brents received a W--4 form (Employee's Withholding Exemption Certificate) 'they had sent over to have it filled out. They said they needed a Social Security number. I don't remember exactly. That is all foggy.' At one point Brents recounted he told 'them' (the Fielders) his record needed to show one employee. At another time Brents testified he talked alone with Mrs. Fielder who 'said put Mr. Fielder down as the employee.' Mr. Fielder's version was that Brents 'said, 'I have got to have a Social Security number.' He said, 'Which one shall I make the check to?' And I said, 'Well, my wife asked for the job,' I said, 'Make it to her.' She were standing just around from me where she could hear me and she said, 'I ain't got my Social Security number with me.' She said, 'It doesn't make any difference no how, this little amount. We are not going to fight over it and we spend it together. It doesn't make any difference.' So I had my Social Security number with me and he taken that. * * *'

Brents telephoned the Fielder residence 'three or four' times regarding special work to be performed at the offices. He usually conversed with Mrs. Fielder and 'if I needed to see them I would tell them what I...