Gilliland v. Bondurant

Full title: JOSEPHINE GILLILAND v. JAMES D. BONDURANT, SR. JAMES D. BONDURANT, JR.…

Court: Supreme Court of Missouri, Division One

Date published: Apr 20, 1933

332 Mo. 881 (Mo. 1933)

59 S.W.2d 679

Opinion

April 20, 1933.

1. PLEADINGS: Setting Aside Judgment. In an action to set aside a judgment for damages as inadequate, rendered in favor of plaintiff while a minor, where the petition did not allege in terms that she had meritorious cause of action or that the judgment was inadequate, if it stated facts from which such matters appear, it was good as against a demurrer.

2. PLEADINGS: Setting Aside Judgment. Where plaintiff's petition alleged that she, fifteen or sixteen years of age, lost her arm through the negligence of defendant and, in a suit by her father as her next friend, an agreed judgment was entered for five hundred dollars for settlement of her claim and that of her father for loss of her services, it sufficiently showed that the judgment was inadequate and obtained by fraud.

3. JUDGMENTS: Consent: Minors. Where plaintiff while fifteen or sixteen years of age, with no one to advise her, filed papers previously prepared by defendant's attorneys settling her claim for the loss of her arm for five hundred dollars, which was paid to her father as next friend and which she never received, though no misrepresentations were made to her, and where her suit was filed for her by defendant's attorneys, with no evidence introduced and no statement made to the court which entered a judgment for plaintiff for five hundred dollars understanding it to be a consent judgment, and where she understood that it settled her father's claim and not her own, the judgment should be set aside for fraud.

4. JUDGMENTS: Consent: Minors: Duty of the Court. A judgment entered in a suit by an infant by her next friend, who was represented by defendant's counsel, might be permitted to stand if counsel in good faith and to the best of his ability safeguarded her interest, but in such case it was the duty of the court to protect the interest of defendant by judicially ascertaining the facts.

5. JUDGMENTS: Consent: Minors: Duty of the Court. An adequate judgment in favor of a minor should not be permitted to stand where upon a direct attack it was shown that the infant had in fact no counsel and the pretended suit for her was brought by attorneys representing her adversaries.

6. TRIALS: Prima Facie Case. To determine whether the trial court should have sustained a demurrer to the evidence, the evidence of both parties must be searched and the plaintiff given the benefit of any and all facts in her favor and every reasonable inference therefrom, while evidence favorable to defendant must be excluded.

7. DAMAGES: Invitee. Where plaintiff sued for injuries received while visiting defendant's bakery and creamery plant and where the petition alleged that she, a high school student fifteen or sixteen years of age, and her class and other classes went to defendant's establishment "at the invitation and with the knowledge of the defendants," she alleged the status of an invitee.

8. DAMAGES: Licensee. If plaintiff visited the defendant's plant, as a licensee, evidence that defendant's machinery was started without warning to plaintiff of the danger, thereby causing her injury, on the theory that she was a licensee, was fatal variance from the pleadings, where the petition pleaded plaintiff's status as an invitee.

9. INVITEE: Inducement. It makes no difference in the owner's duty to an invitee whether the invitation is expressed or implied; an invitation may be implied from dedication, customary use, enticement, allurement, or inducement to enter, or it may be manifested by the arrangement of the premises.

10. INVITEE: Ordinary Care. The owner's duty to an invitee was to take ordinary care to prevent her injury.

11. LICENSEE: Degree of Care. Ordinarily one who goes into an industrial plant merely to satisfy his own curiosity, to learn how it operates for his own benefit, is a licensee, and the only duty of the owner is that he will not wilfully or wantonly injure him or knowingly let him go into hidden peril or by an affirmative negligent act injure him after his presence is or should have been discovered in a position of danger.

12. INVITEE: Expressed or Implied Invitation. Where there was a long established custom for school classes to visit defendant's plant for the purpose of receiving instruction from the owner's employees, as part of their school work, and where it was the defendant's business plan to invite the public generally and to make appointments with classes from various schools to visit the plant, when plaintiff went there with her school class she was an invitee both by express and implied invitation.

13. INVITEE: Damages: Submissible Case. Where plaintiff, a high school girl fifteen years of age, visited the defendant's ice plant with her class as an invitee, and while reaching in the ice crusher to pick up ice was injured by the unexpected operation of a crusher, with no warning that its operation would continue after it was supposed to be shut off, a submissible case was made out.

Appeal from Grundy Circuit Court. — Hon. A.C. Knight, Judge.

AFFIRMED.

S.H. Ellison, Andrew Ellison, R.E. Kavanaugh and Rieger Rieger for appellants.

(1) The finding should have been for the defendants on the second count of plaintiff's petition: (a) No fraud was used by defendants in procuring the judgment. Robinson v. Foesch Co., 236 S.W. 332; McFaden v. Simms, 273 S.W. 1050. (b) The true facts were stated to the court, in open court, by next friend, or in his presence, and the court approved of the settlement. Authorities above cited. (c) The idea claimed by plaintiff that she thought she was settling her father's case was not induced by defendants, nor did they know that she had such an idea. Bates v. Hamilton, 144 Mo. 1. (d) Plaintiff did not plead she had a meritorious case, or that the amount of the judgment was inadequate. Greenard v. Isaacson, 220 S.W. 694; Sawer v. Kansas City, 69 Mo. 46. (2) Defendants demurrer should have been sustained as to the first count for the following reasons: (a) Pleading, as she did, she was both invited and permitted to visit the defendants' premises she pleads she was a licensee, O'Brien v. Transit Co., 212 Mo. 70, and therefore, pleads no negligence against defendant. Carr v. Railroad Co., 195 Mo. 214; Christy v. Price, 7 Mo. 430. (b) Being a licensee she alleges the breach of no duty owing her by defendants. Kelly v. Benas, 217 Mo. 9; Glaser v. Rothschild, 221 Mo. 180; Nivert v. Railroad, 232 Mo. 626. (c) Not making a case on the second count the plaintiff made no case on the first count. (d) There was no evidence that plaintiff, or any member of the class, might be reaching into the crusher at the time it was started. Galliger v. Kroger Co., 272 S.W. 1006; Hall v. Railroad Co., 219 Mo. 553; Majors v. Ozark Co., 222 S.W. 462; Zasemowich v. Am. Mfg. Co., 213 S.W. 803; Monday v. Railway Co., 136 Mo. App. 692. (e) And that theory of negligence was not an issue under the petition. Klein v. Foskin, 13 S.W.2d 664; Kirkland v. Bixby, 222 S.W. 462. (f) Being no better than a licensee the defendants owed plaintiff no duty except to not injure her intentionally. Kelly v. Benas, 217 Mo. 1; Glaser v. Rothschild, 221 Mo. 180; Myers v. Ry. Co., 157 S.W. 362; Carr v. Ry. Co., 195 Mo. 214. (g) The plaintiff was guilty of contributory negligence. Nivert v. Railroad Co., 232 Mo. 626; Murry v. Railroad, 101 Mo. 236; Grossman v. Wells, 282 S.W. 710; Zumault v. Railroad. 175 Mo. 288; Dyrez v. Railroad, 238 Mo. 47. (h) There was no duty to warn plaintiff to not go back and take ice out of the crusher until it became apparent that she intended to do so. Watson v. Railroad, 133 Mo. 251; State v. Ellison, 271 Mo. 474. (i) Plaintiff does not allege that it was negligence to not warn her that the crusher was about to be started. Her petition alleges she had come to see it operate. The negligence she alleges is that she was not warned of prongs on the cylinder. This issue could not be broadened. State v. Ellison, 270 Mo. 645; Mould v. Co., 237 S.W. 203; Gullen v. Johnson, 29 S.W.2d 39. (j) Neither plaintiff, or any other members of the class, or of any class, had ever before gone back to the crusher, and Pierson had no reason for believing that plaintiff would do so. Hight v. Bakery Co., 168 Mo. App. 460. (k) Even if plaintiff was an invitee the defendants owed her no more than ordinary care, and they had the right to test her conduct by that of the majority of her class which remained at the churn. Murphy v. Winter Garden, 280 S.W. 446; Rueter v. Terminal, 261 S.W. 713; Am. Brew. Co. v. Talbot, 141 Mo. 674; Chrismer v. Bell Co., 194 Mo. 212. (1) Plaintiff owed defendants, the teacher, the class and herself the duty to remain at the churn and listen to the instruction, and Pierson had the right to believe she would do so. It is not the law that every one is expected to perform his duty except the party injured. (m) Evidence that there was a sign on the window "Inspection Invited" should not have been considered by the court. It had nothing to do with plaintiff's visit, nor was it of probative value. Sexton v. Railway Co., 245 Mo. 254; Kirk v. Middelbrook, 201 Mo. 288; King v. Railroad Co., 211 Mo. 16. (n) Evidence as to visits of other classes should have not been admitted, and should now be disregarded. Visits by other classes had nothing to do with plaintiff's visit. The facts as to how she came were introduced. Also, her petition alleges she was permitted to come. Lorie v. Lumbermen's Cas. Co., 8 S.W.2d 88. (o) Evidence in regard to giving away ice cream should be disregarded. Plaintiff had gone to the bakery to learn ice cream; it was shown to her, but she was given none. Neither did she claim she even knew that some time other classes had been given any. She was not attracted to the bakery by the hope of getting ice cream, nor was she permitted to come by defendants in order that she might sample its good quality. Pyrtle v. Int. Shoe Co., 291 S.W. 172. (p) There was a fatal variance between the pleading and the proof. Gandy v. Ry. Co., 44 S.W.2d 634; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179; Nugent v. Milling Co., 131 Mo. 241; Koenig v. Milling Co., 173 Mo. 698. (q) The testimony of plaintiff and her witness that all of the girls got ice out of the crusher, and that there was no ice on the floor is not high grade. Kirk v. Middlebrook, 201 Mo. 288; Grantham v. Gossett, 182 Mo. 674.

A.D. Campbell and John Campbell for respondent.

It is also claimed the court erroneously overruled the motion to elect. This insistence proceeds upon the theory that the allegation referred to states a case based upon an invitation and a case based upon license. What we have said answers that contention. Moreover, after the demurrer and the motion to elect were overruled the defendants answered, thus waiving the point. Buckman v. Bankers' Mortgage Co., 263 S.W. 1048. "We cannot notice the point for the reason that defendant by afterwards answering waived all defects in the petition save want of jurisdiction and failure to state a cause of action." Barnes v. Houchin, 195 S.W. 60. "The only objections under our Code not waived by pleading over are, that the petition does not state facts constituting a cause of action, and that the court has no jurisdiction of the subject-matter." State ex rel. v. Trimble, 262 S.W. 357. Where the owner of premises permits them to be used to further his business, the rule "applicable to that change is that a licensee who goes upon the premises of another at the other's invitation and for that other's purposes is no longer a bare licensee. He becomes an invitee and the duty to take ordinary care to prevent injury is at once raised, and for the breach of that duty an action lies. . . . The word invitation used in the rule covers and includes in it enticement, allurement and inducement if the case in judgment holds such features. Also, the invitation may be implied by a dedication or it may arise from known customary use. . . . So, too, it is held in all the cases that the invitation may be implied by any state of facts upon which it naturally and reasonably arises. Glaser v. Rothchild, 221 Mo. 121; Township Board v. McPherson, 157 S.W. 859.

HYDE, C.

This is a suit for damages for personal injuries. The petition contained two counts. The first count was an action at law for personal injuries which plaintiff sustained during her minority as the alleged result of defendants' negligence. The second count is a suit in equity to set aside a judgment, rendered for such injuries during plaintiff's minority, in a suit in which her father was named as her next friend.

The second count was first tried and the trial court entered a decree setting aside the former judgment. Thereafter, the court proceeded to try the action at law stated in plaintiff's first count, and rendered a judgment in plaintiff's favor. Defendants appealed to the Kansas City Court of Appeals and the trial court's decree and judgment was affirmed. One of the judges, however, dissented upon the ground that the opinion in affirming the judgment on the first count for plaintiff's injuries was in conflict with the decision of this court in Gandy v. St. Louis San Francisco Ry. Co., 329 Mo. 459, 44 S.W.2d 634, and Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 776. The case was accordingly certified here under the provisions of Section 6 of the Amendment of 1884 of the Constitution. [Gilliland v. Bondurant (Mo. App.), 51 S.W.2d 559.]

Defendants contend here, as they did in the Kansas City Court of Appeals, that plaintiff was not entitled to the decree rendered by the trial court setting aside the judgment in the suit brought by her next friend during her minority. Upon this proposition, we adopt the complete statement of facts and the able decision thereof by the majority opinion in the Kansas City Court of Appeals as follows:

"The second count is to set aside a judgment rendered in a suit brought by plaintiff's father, as her next friend, against defendants for the damages sustained on account of said injury.

[1, 2] "A demurrer was filed to the second count on the ground that the same did `not state facts sufficient for the granting of the relief therein prayed,' the point of the demurrer is that `plaintiff did not plead that she had a meritorious case or that the judgment was inadequate.' No doubt the second count does not contain such allegations in so many words; but the allegations and statement of facts made therein are such that the above-mentioned matters appear therefrom as a matter of law. Two cases are cited in support of the charge that the count is fatally defective, namely, Greenard v. Isaacson, 220 S.W. 694, and Sauer v. Kansas City, 69 Mo. 45, in the first of which it was sought to enjoin the enforcement of a judgment because of fraud in procuring it, and in the other to enjoin the collection of a judgment for taxes. But these cases have no application here, since they deal with situations vastly different from the one involved in the said second count. On the face of the facts stated in the two cited cases, there appeared to be nothing wrong or improper in the judgments sought to be set aside, but not so in said second count of the case at bar, for here the facts alleged, if true, spoke for themselves. They not only showed fraud in the procurement of the judgment, but also that the latter was wholly inadequate in a case where a young girl had lost her arm through defendants' negligence and was settling, for a mere pittance of $500, not only her own case (for the loss of her arm) but also her father's for loss of his child's services. These facts, which were stated, showed fraud and inadequacy in terms far louder and more impressively than any formal statement to that effect could have done. Besides, the second count `repleads and restates as true all of the allegations of' the first count.

"The charge of error in overruling demurrer to the evidence under the second count does not appear in defendants' `Assignment of Errors,' but as the point is argued and discussed later in the brief, we prefer to consider and pass on it. (Since this count is an equity case, the assignment that `the court erred in finding for plaintiff on the second count of the petition' is sufficient to raise the questions discussed.) However, we fail to see wherein the evidence was not sufficient. In the evidence under the second count, it appears that plaintiff's father and the defendants reached a settlement of the claim for damages in May, 1921, and in accordance therewith, an `agreed judgment' was entered in plaintiff's favor for $500. It seems that plaintiff, being then a young girl between fifteen and sixteen years old, at the request of defendants' then attorneys, signed a request for the appointment of her father as next friend, which last request states that it is in order to bring a suit in her behalf. But, in the trial of the said second count (being the action to set aside said judgment), plaintiff testified that she understood from her father that the papers were to be signed in order to settle his, and not her, suit against the defendants; that she did not recollect reading the papers she signed; that she signed the papers referred to, all of which were drawn by defendants' attorneys (not their present attorneys, however) in their office, they having prepared them prior to her being called by them to said office. As stated, these attorneys were not the same attorneys who now represent the defendants. Plaintiff, her father and her mother, also signed receipts and releases reciting the payment of $500 to her father as next friend in settlement of her cause of action, and also any cause of action her father and mother might have against defendants. No express representations were made to plaintiff as to the contents of the papers by the then attorneys for defendants. There were none needed; plaintiff was a child with no one to advise her, or at least none who did advise her, and those who prepared the suit did not have to take the hazard of expressly telling her what they were or of explaining them to her; all they had to do was to merely keep silent, and this they did. Defendants' then attorneys thereupon filed the suit against defendants (their own clients) in behalf of plaintiff by her next friend; defendants entered their appearance thereto, and, without the hearing of any testimony, judgment was rendered in favor of plaintiff for $500. The judge who rendered it testified as a witness on the trial of the second count, and stated that no one addressed the court except the (then) attorneys of defendants, and that he, the judge, understood and acted upon the understanding that the judgment entered was an `agreed judgment;' that plaintiff's father was present, but that he, the witness, did not think the father said anything. The evidence under said second count shows that plaintiff was not present. The whole proceeding did not take five minutes. The judgment of $500 was immediately paid, and the $500 was turned over to the plaintiff's father, and plaintiff never, at any time, received any part of it. The evidence, under the said second count herein, also showed that plaintiff's father was afflicted with paralysis agitans that `affects his mind to a certain extent but not enough but he knew what he was doing.' One of defendants' (then) attorneys testified herein that, in that suit, no witness was sworn nor evidence given; that he made a statement of facts to the judge, saying it was agreed that judgment be entered `as it was written up.' The evidence shows that plaintiff never knew that any judgment was in her favor and the same counsel appeared on both sides of an adversary proceeding. Hence, no suit in her behalf was brought. [Arrington v. Arrington, 116 N.C. 170.] But it is now urged that no evidence was introduced under the second count to prove plaintiff had a meritorious case. See Robison v. Floesch Const. Co., 291 Mo. 34, 236 S.W. 332; Gurley v. St. Louis Transit Co. (Mo. App.), 259 S.W. 895, in each of which cases there was a trial on the count to set aside judgment, but no effort was made therein to show that the plaintiff had a meritorious case. In the Gurley case the evidence is set forth, and the infant plaintiff was actually present in court, and had a slight opportunity to know (but in fact did not know) that a suit was being brought. But the court held, nevertheless, that the judgment was inherently fraudulent, the plaintiff did not know what was being done and there was no judicial investigation or determination of the issues.

"Moreover, in the trial of the second count in the case at bar, plaintiff's counsel inquired of the court as to whether they should go into the merits of the case. The court replied, `Oh, no, I wasn't trying the merits of the case, don't think counsel had any such understanding as that, did they?' Defendants' counsel replied, `Don't know where they would get it.' Plaintiff's counsel then said, `I will not go into the merits of the case.' The court: `No.'

"However, it was shown there was merit in her case, for the petition written and filed by the defendants against themselves, in the case of the $500 judgment, was introduced in evidence, in the trial under the second count to set it aside; and in it defendants accused themselves of having wrongfully caused plaintiff to lose her arm; and the judgment rendered therein which they had also prepared upheld the allegations of the said petition.

"Besides, the fact that the defendants' then attorneys prepared all the papers in the case, including the form of the judgment, and were the only attorneys in the case and representing both sides which were adverse to each other, is sufficient to render the $500 judgment void and calls for setting it aside. [Marcom v. Wyatt, 23 S.E. 169; Walker v. Grayson, 10 S.E. 51; Parker v. Parker, 99 Ala. 239; In re Boone, 83 F. 944, 957.]"

[4, 5] To this it may be added: The settlement (by an agreed judgment), of a suit for an infant by a next friend represented by his own counsel, may be permitted to stand where such a counsel is safeguarding, in good faith to the best of his ability, the interest of his immature client (even then it is the court's duty to protect the infant's interest by judicially ascertaining the facts, through a real hearing and consideration of them); but all authorities are unanimous in holding that no judgment in such a case will be permitted to stand when, upon a direct attack by a suit to set it aside, it is shown that the infant had no counsel in fact, and that the pretended suit for the infant was brought by attorneys representing the adversary. [Robison v. Floesch Construction Co., 291 Mo. 34, 236 S.W. 332, 20 A.L.R. 1239, note, 1249; Carroll v. Atlantic Steel Co. (Ga.), 106 S.E. 908, 15 A.L.R. 660, note, 667.] In this case, the attorneys, who brought the infant's suit, did as directed by the insurance adjuster who employed them to provide, as a means of concluding plaintiff's rights through a legal form (as said in the Robison case, supra), "a screen contrived to conceal the real transaction, the contract of settlement and release between plaintiff and defendant, and having for its purpose the foreclosure of plaintiff's right to disaffirm . . . upon reaching the age of discretion, or upon the receipt of mature counsel." Such a suit is not a suit in fact, and as a screen it is only a smoke screen, which disappears in the light of the true facts and fails to prevent the searching eyes of a court of equity from clearly seeing the real transaction. So seeing, equity will declare it nothing and allow a real suit to proceed.

After the court entered its decree setting aside the judgment in the former suit as prayed for in plaintiff's second count (which decree we now affirm), the parties entered into the following stipulation concerning the trial of plaintiff's first count:

"The parties, plaintiff and defendants, agree that the cause of action stated in the first count of plaintiff's petition shall be submitted to the court, jury waived. If at the close of the case the court is of the opinion the plaintiff has made a case entitling her to have the case submitted to a jury if a jury was trying the same; that is, if the plaintiff has made a case good as against a peremptory instruction to find for the defendants, then and in that event the court shall render in favor of the plaintiff for the sum of $4500. If the court is of the opinion that the plaintiff has not made a case good as against a peremptory instruction, then judgment shall be entered for the defendants.

"It is further agreed that either party, that is, plaintiff or defendants, may appeal from the judgment of the court, the same as if this agreement had not been made and nothing in this agreement shall be construed to be a waiver of the defendant's right to assert the exceptions previously made in this cause in the trial of the second count, and to the action of the court in overruling defendant's demurrer to the second amended petition and in overruling defendant's motion to strike part of plaintiff's said second amended petition, and in overruling defendant's motion to require plaintiff to elect."

Plaintiff's first count was for damages for the loss of her right arm in an ice crushing machine operated by defendants when plaintiff, with other members of a high school class, went upon defendants' premises to see the operation of their bakery and creamery. Plaintiff alleged that the class went there "at the invitation and with the permission and knowledge of defendants;" and further alleged "that continuously for several years immediately preceding the aforesaid injury, a large number of classes of students of the public schools of the said city of Kirksville, . . . did at the invitation and with the knowledge and consent of defendants, go to said defendants' establishment to look at and observe the aforesaid machinery and manner in which the same was operated and, did there, under the direction of defendants, look at, and observe said machinery and the manner in which the same was operated."

Plaintiff's petition described defendants' ice crusher and the revolving prongs therein; and then charged negligence as follows:

"That at all of said times defendants herein knew, or by the exercise of ordinary care on their part could and would have known that for plaintiff and other members of her class to be picking up with their hands pieces of said crushed ice from the place where the same was deposited by said ice crushing machine as aforesaid, was extremely dangerous and hazardous, and liable to result in the arm, hand or clothing thereon of plaintiff or such other members of her class being caught by said prongs, and the arm and hand pulled into and crushed in said machine.

"That notwithstanding said knowledge of said danger and hazard to plaintiff and the other members of her class, defendants negligently and carelessly failed to warn plaintiff or the other members of her class of said danger, or advise them, or either of them of the existence of said prongs or of any danger incident to the picking up of said pieces of crushed ice; that during all of the time plaintiff was in said basement looking at, and observing said machinery and the manner in which it was operated as aforesaid, defendants were engaged in operating said machinery and in showing and demonstrating to plaintiff and her said class the manner in which the same operated and produced the product manufactured by defendants."

Plaintiff further alleged that she and others in the class "did, with the knowledge of defendants, pick up with their hands pieces of said crushed ice from the place where the same were deposited;" that "she did not know of the existence of said prongs, or of any danger therefrom or of any danger of being caught by said prongs;" "while defendants were still engaged in operating and demonstrating the manner in which said machinery was operated," she picked up another piece of ice; and that her arm "was caught by said prongs and thus pulled and forced into said machine."

Defendants' answer, in addition to a general denial, specifically denied any invitation by defendants, alleged that the visit was for the exclusive benefit of plaintiff; that plaintiff was warned of the danger of all moving machinery; and alleged contributory negligence on her part.

Under the stipulation concerning the determination of plaintiff's right to damages for her injuries, there is really only one question to be considered here, that is, whether or not the trial court should have sustained a demurrer to the evidence. This was the only question for either the trial court or the appellate court. Both plaintiff and defendants introduced considerable evidence to show what they claimed were the true facts. This evidence was conflicting. Although it is argued by defendants, here, we are not, nor was the trial court, concerned with this conflict, nor the weight and credibility of the evidence. The rule, under which the sole question in this case must be determined, is that "the whole evidence, whether offered by plaintiff or defendants, must be searched and the plaintiff given the benefit of any and all facts and circumstances favorable to or tending to support her theory of the case and every reasonable inference deducible therefrom, while evidence on the part of and favorable to the defendants, which is contradicted, must be excluded." [Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809; see, also, Armstrong v. Mobile Ohio Railroad Co., 331 Mo. 1224, 55 S.W.2d 460; Grubbs v. Kansas City Pub. Serv. Co., 329 Mo. 390, 45 S.W.2d 71.]

We will, therefore, undertake to state the facts which we think the evidence, viewed in this light, tends to show. Defendants operated a bakery and creamery, doing a wholesale and retail business over several counties, in bread, ice cream and butter. Their plant was equipped with up-to-date appliances and machinery for handling their products in a sanitary manner. They widely advertised that their products were not touched by human hands. Inspection of their appliances and their methods of making their products, by those who might be prospective customers, was encouraged. For that purpose, they had on their window a sign stating "Inspection Invited." It was shown that classes of students, about five or six classes each year, from the Kirksville high school and grade schools, from the State Teachers College and the American School of Osteopathy, also located in Kirksville, were annually taken through defendants' plant and shown their appliances and methods. It is a reasonable inference from the evidence that this was one of defendants' methods of advertising their products; that it was done through arrangements with the school authorities to bring classes there; and that they were brought there in connection with and as a part of their school work, not out of mere curiosity on the part of the children to watch the wheels go 'round. These classes came by appointment and "generally had some object in view, be first on one subject and then another, be either butter making or ice cream making." Samples of ice cream were frequently given to these classes. When an appointment was made, defendants instructed their employees about the demonstration the class was coming for, to specially clean up the place and have things in readiness, to have as little machinery running as possible, and to give demonstrations of their work. Mr. Pierson, who supervised defendants' ice cream and butter department, said he "instructed them like any teacher would a class of students in school."

One of the classes, which annually came to receive instruction in defendants' establishment to learn about the handling of butter and other dairy products on a commercial scale, was the girls' class in household economics of the Kirksville High School. Plaintiff, as a member of this class, went to defendants' establishment on the day she was injured. An appointment had been made by the teacher of the class to go there at 1:30 P.M. Plaintiff first received information concerning going to defendants' place of business from the teacher after the class had assembled at the school building. Plaintiff was fifteen years and five months old at the time and a sophomore in the high school. There were between eighteen and twenty girls in the class. Upon their arrival at defendants' plant, one of the defendants took them through the bakery on the upper floor and showed them how the bread was mixed, baked, and wrapped. They went to the basement where the dairy products were handled and were first taken to the cold storage room and instructed by the defendants' foreman as to the handling of milk and cream. From the cold storage room, they were taken to the churn, which was operated by electric power. To reach this churn from the cold storage room, they went about twenty feet in a southwesterly direction. About ten or twelve feet to the north of the churn, nearer the cold storage room, was an ice crushing machine. The direct route from the cold storage room to the churn took them within ten feet of the ice crusher. Upon a concrete foundation, between the churn and the ice crusher were power driven separators and a clarifier. Also between the churn and the ice crusher was a switch, which turned on the power, operated by a lever "like an old saw mill slide." When the power was turned on, it revolved the shaft which operated both the ice-crushing machine and the churn. It was possible to stop the churn, without turning off the power, but to stop the ice crusher, the power which operated the shaft had to be turned off.

The ice crusher was a square affair standing up like a coffee mill from two and one-half to three and one-half feet high. It had an opening on the top in which cakes of ice up to about fifty pounds were placed. They dropped down into the middle of the machine and were crushed. It had a solid steel case all around except that there was a place along the bottom open for the crushed ice to come out, like a grate in a furnace where ashes are taken out. The top of this opening was from fifteen to eighteen inches above the floor. Inside the steel case was a round cylinder like a threshing machine cylinder with a tube on it something like a separator. There were teeth or prongs in the bottom of the cylinder inside the crusher which were not visible from the outside. These teeth or prongs carried the crushed ice to the front of the opening, threw large pieces outside and deposited the small ones in the bottom of the opening. When there was a considerable amount of ice crushed, it piled up on the floor in front of the opening and sloped gradually back into it. The teeth or prongs could not be seen without looking up under the opening. The lower end of them were about thirteen and one-half inches above the floor and about eleven inches from the front of the opening. There was a flywheel on the side of the crusher about thirty inches in diameter protruding out in front about four inches; the belts which operated the shaft were encased in wire netting. The flywheel was on the same axle as the cylinders on the inside of the crusher and when the crusher was operating the flywheel and belts could be seen moving. A three-cornered piece had been broken out of the front of the crusher, something like seven inches high and six or seven inches across the corner. "Before that piece was broken out, one could not have been caught by those prongs or teeth without they reached up in under the encasement." Defendants' foreman said that defendants were to order a new piece to fix the crusher but never did so, but that they did have "a light piece of tin put across there. It was just a light piece of sheet iron brought down over that space clear across that space, the broken part. It was off when plaintiff was hurt — rusted off — and had been for six months or a year."

When plaintiff's class went into the cold storage room, a number of the girls picked up ice in the opening of the ice crusher. They ate these pieces of ice and picked up more when they came back from the cold storage room to the churn. It is reasonably inferable from the testimony that Pierson saw members of this class reaching into the crusher for ice; had seen members of other classes do so; and had reason to expect that members of plaintiff's class would continue to do so as long as they were near it. The class all stood around the churn while defendants' foreman opened it for them to look into, explained its operation and started the power to show its operation. No machinery in the basement had been running during their visit up to that time. There was some conflict about the size of the pile of ice in and around the opening of the ice crusher and whether the ice outside on the floor was dirty. Plaintiff's evidence was, however, that she and the others picked up small pieces of ice inside the opening of the machine only. Plaintiff said that a few minutes before she was caught in the crusher she looked at the butter in the churn and saw defendants' foreman put the churn in motion; that she did not leave the class at the churn; and that they were not observing the contents of the churn when she reached into the ice crusher for another piece of ice and was caught. Her arm was crushed so that it had to be amputated. She said she had received no warning that there was any danger from the ice crusher, or in picking up ice from it, and did not know that it was in motion when she attempted to get another piece of ice from it.

Defendants' foreman, Pierson, testified to three separate, distinct and inconsistent ways in which he said the accident occurred. He was corroborated by another one of defendants' employees who was in the basement at the time, as to the third way he stated it. Plaintiff called Pierson as a witness and, upon direct examination, only asked him to describe the ice crushing machine, the other machinery and its operation, the custom of receiving and instructing school classes, and his instructions from defendants about them. Upon defendants' cross-examination he told of the occurrence as follows:

"I showed them the butter first — the churn was all set; I raised the lid and showed them the butter. Now, I says, I will throw the switch in and never saw nobody but the class, I stepped over here (indicating) and threw it in gear and the churn went to going, and then as soon as I threw the churn in gear I heard the scream and turned around and here the girl was sitting in a hunkered position. I run back and turned the switch."

Later he was examined by the court and gave a second version as follows:

"THE COURT: During this time they had been in the basement neither the ice machine nor the churn was not in operation until at some time there you wanted to show the operation of the churn? WITNESS: Right. THE COURT: Then you stepped between the ice machine and the churn and threw on the switch? WITNESS: Right. THE COURT: That started both of them? WITNESS: Right. THE COURT: Now how close to the time of your turning on the switch did you learn that the plaintiff was injured, or hear her cries? WITNESS: Well probably three minutes, or — oh, a very short time."

Upon further cross-examination, with reference to his former written statement, his third account was that he had shut off the power and returned to the churn before plaintiff was injured. His testimony then was, as follows:

"Q. Tell the court whether it is a fact that you had shut off the power and that the machine was simply operating on its own momentum at the time of this accident? A. It was on its own motion. Q. That's correct, isn't it? A. That's right. Q. The power was not on at that time? A. The electric power, no, I guess not, that right anyhow. Q. Now this flywheel and these teeth would have only operated and did only operate and revolve for thirty seconds after the power was shut off. A. It has never been timed — something like that in my judgment."

The jury, of course, would have been justified in believing that the accident happened in any one of these three ways, or in deciding that defendants' foreman did not know how it happened, disregarding his testimony about it entirely, and basing their finding of how it happened on other testimony.

Defendants filed a motion to elect on the theory that plaintiff's petition pleaded two causes of action in the same count, one based on plaintiff being an invitee, and one based on being a licensee. The trial court overruled the motion and while the matter does not seem to have been preserved for review we think that the motion should have been overruled. We say this, because we think it is necessary for us to decide what is the theory of plaintiff's petition. As hereinabove stated, the language of the petition is that she and her class and the other classes in former years went to defendants' establishment "at the invitation and with the permission and knowledge of defendants." This is not alleged in the alternative. The lesser (permission) is included in the greater (invitation). We hold that plaintiff alleged a status of invitee and charged negligence upon the basis of defendants' duty (failure to warn of danger) to her as an invitee. Her case must, therefore, stand or fall upon that theory. The majority opinion of the Kansas City Court of Appeals, after finding there was evidence tending to show that plaintiff was an invitee, said that "in this case, it makes no difference whether plaintiff was an invitee or a licensee; the defendants' duty toward her was the same." The court's theory was that there was evidence of active negligence, namely, "that Pierson negligently put the crusher in motion knowing, or being under the duty of knowing before doing so, that plaintiff was in the act of picking up ice." The court thought that the allegations of the petition were broad enough to cover this theory of negligence and that even if not, that the petition should be treated as amended because defendants offered no objection to the evidence sustaining that theory and joined in trying it "as if it were in the petition."

The dissenting opinion took the view (we think correctly) that a recovery upon this theory could not be allowed because it constituted "a fatal variance between the evidence and the allegation of the petition."

This dissenting opinion says:

"It is true that the evidence that the machine was started up by Pierson without warning was admitted without objection of defendant. The failure to object does not show that they were trying the case on the theory that the starting of the machine, without warning, was pleaded in the petition, for there was no burden upon defendant to object to evidence introduced in behalf of plaintiff, which disproved her pleaded case. Under the latest decisions of the Supreme Court, merely because defendant failed to object to the testimony referred to above, this case cannot be considered here as having been tried by it on the theory that the petition pleaded that the machine was started without warning as plaintiff was about to insert or had inserted her hand into it. [Gandy v. St. Louis-San Francisco Ry. Co. (Mo. Sup.), 44 S.W.2d 634, 638; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 676.]"

The Gandy case and the Kitchen case both held that it was reversible error for a trial court to give an instruction authorizing a recovery upon a theory of negligence not pleaded. This case never reached the point of broadening the issues by instructions, because under the parties' stipulation the only question to be determined was whether or not a demurrer to the whole evidence should be sustained. But when a plaintiff pleads a cause of action based on nonfeasance, the negligence of defendants in failing to perform a duty which they are alleged to owe her as an invitee, to warn her of danger (which is an affirmative duty to use care for her safety), it would seem to be fundamental that the proof of an entirely different cause of action based on misfeasance, the violation of the duty, which they are alleged to owe to her as a licensee, not to wantonly injure her by turning on a power crusher when defendants' employee saw, or could have seen by looking, that she had her hand inside of it (a negative duty not to commit a negligent act which would injure her when in a position of peril), would be a fatal variance between pleading and proof. [45 C.J. 1062-64, secs. 633-35, also p. 1143, sec. 735; 49 C.J. 804-12, secs. 1187-91.] The stipulation, that plaintiff was entitled to recover if she made a submissible case, undoubtedly meant if she produced sufficient evidence to prove, if believed, the case alleged in the first count of her petition, and not some other case she might have alleged if she had it to do over again.

Since plaintiff's petition proceeds upon the theory that plaintiff was an invitee, if, upon a consideration of the whole evidence in the light most favorable to plaintiff, we can say that there were sufficient facts and circumstances to show, if true, that plaintiff was an invitee, then all the other matters discussed by the Kansas City Court of Appeals concerning the liability of defendants to plaintiff if she was only a licensee are eliminated. Defendants rely upon Benson v. Baltimore Traction Co. (Md.), 26 A. 973, to sustain their position that plaintiff was only a licensee. As stated in that case:

"The authorities appear to have classified this subject under these heads, to-wit: (1) Bare licensees or volunteers; (2) those who are expressly invited or induced by the active conduct of the defendant to go upon the premises; (3) customers and others, who go there on business with the occupier. Each case must largely depend upon the circumstances attending the occurrence, and it is not infrequently found to be difficult to determine whether the injured party is a mere licensee, or whether he is on the premises by the implied invitation or enticement of the owner or occupier." [26 Atl. l.c. 975.]

Corpus Juris states the distinction between a license and an invitation thus:

"A license is distinguished from an invitation in that the licensee is on the premises by sufferance only, and not by virtue of any business or contractual relation with, or any enticement, allurement, or inducement to enter held out to him by, the owner or occupant, but merely in his own interest and for his own purposes, benefit, convenience, or pleasure." [45 C.J. 789-90, sec. 194.]

[9, 10] It, however, makes no difference in the owner's duty to the invitee whether the invitation is express or implied. [45 C.J. 808, sec. 218.] An implied invitation is defined as "one which is held to be extended by reason of the owner or occupant doing something or permitting something to be done which fairly indicates to the person entering that his entry and use of the property is consistent with the intentions and purposes of the owner or occupant, and leads him to believe that the use is in accordance with the design for which the place is adapted and allowed to be used in mutuality of interest." [45 C.J. 809, sec. 220.] "However, it is not sufficient that the user believed that the use was intended, but in order to occupy the status of invitee, he must show that there was some act or conduct of the owner or occupant which afforded a reasonable basis for such belief. An invitation may be implied from dedication, customary use, or enticement, allurement, or inducement to enter. It may be manifested by the arrangement of the premises or the conduct of the owner." [45 C.J. 810, sec. 220; see, also, Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A. (N.S.) 1045, 17 Ann. Cas. 576.] The owner's duty to an invitee is to take ordinary care to prevent his injury. [Glaser v. Rothschild, supra.]

Ordinarily, one who because of his own inclination, goes into an industrial plant merely to observe its operation, to satisfy his own curiosity or to learn how it operates solely for his own benefit is a licensee only, regardless of whether he wanders around by himself or is, through the owner's curtesy, furnished a guide. Under those circumstances, it seems to be plain that, unless some further duty is imposed by statute, the only duty of the owner is that he must not wilfully or wantonly injure him, or knowingly let him go into a hidden peril, or otherwise, by an affirmative negligent act, injure him after his presence is or should be discovered in a position of danger. He owes him no affirmative duty of care to protect him. [45 C.J. 796, sec. 201; also secs. 207-212.]

In Weaver v. Carnegie Steel Co. (Pa.), 72 A. 552, 21 L.R.A. (N.S.) 466, where one of a group of visitors in a steel mill fell through an opening in the floor, it was said:

"In the present case permission was sought and obtained in behalf of the body of gentlemen who were visiting the mill. The object of the visit was to afford pleasure and benefit to the visitors; so that the facts show merely a case of license upon the part of the owner. There is nothing in the record to show that appellant was invited or induced by any act of the defendant to visit the steel mill, but it does appear that he went there entirely for his own personal gratification."

Likewise, in another case, it was stated:

"A mere sightseer, on no other business, goes into any one of the large modern factories in operation throughout the civilized world. It requires great care and watchfulness on his part, unfamiliar as he is with such places and things, to avoid danger and escape injury, although the place is reasonably safe and fit, and everything is carried on with due ordinary care; but unless there is wanton injury, the result of gross negligence, the owner is not liable. Why? The owner has set no trap for him; he did not induce, but only permitted, him to come; he is not there on business; the place and appliances belong to the manufacturing company; it was fixed for them and their employees; it suits them; by their knowledge and skill they avoid danger, though to those unskilled and unfamiliar it may be dangerous, — dangerous to any one in fact; but it was not made for, and is not carried on for, any purpose with which the licensee has anything to do; if the injury is not wanton, the negligence is not gross, and the company is not liable, for it owed him no other duty, and that one has not been violated." [Myers v. Gulf Public Service Corp. (La.), 132 So. 416; Poling v. Ohio River Railroad Co. (W. Va.), 18 S.E. 782, 24 L.R.A. 215.]

In a number of cases this rule has been applied where a class of students come with their teacher for the purpose of seeing the operation of machinery. [Benson v. Baltimore Traction Co. (Md.), 26 A. 973; Castonguay v. Acme Knitting Machine Needle Co. (N.H.), 136 A. 720; Myers v. Gulf Public Service Corp. (La.), 132 So. 416; Roe v. St. Louis Independent Packing Co., 203 Mo. App. 11, 217 S.W. 332.]

However, these were all cases of isolated visits. In none of them, was it shown that the visit described was, as here, pursuant to a long established custom for the same class and similar classes to go there; that the visit was for the purpose of receiving instruction from the owner's employees as part of the school work of the class; that the owners of the plant visited did anything to indicate a desire to have the visit made; or that the visit was in any way related to any purposes of the proprietors. In the Benson case the members of a manual training class, after having been shown through the premises by an employee, were permitted to look around for themselves and plaintiff, there, was injured while so doing. The defendant company was only asked by the school principal to grant permission to the class to visit its power house. The court said that the granting of the permission was clearly a mere license "to an examination of the works and machinery in the power house, for the purpose of gratifying their curiosity or of improving their knowledge of the workmanship of the machinery and of the manner in which such power was applied in moving the cars upon the streets of the city," and that no benefit could accrue to the defendant. In the Castonguay case the decision was put upon the ground that the manager who gave permission for the students to visit defendant's mill had no authority to invite anyone there. That case does not apply here, because arrangements for classes were shown to have always been made with the defendants themselves.

In the Myers case a chemistry class was taken to an ice plant. It was expressly shown that there was neither a special nor a standing invitation to bring classes there and that the class was not brought there for advertising purposes. The court, in holding they were licensees, said:

"The visit was in no sense or degree for the interest or benefit of the defendant, nor was it made at the suggestion of the defendant or any of its employees. The request for the permission to make the visit of observation came from the chemistry class and its members as represented by the teacher of the class and the principal of the high school. There was no common interest or mutual advantage. The benefits to be derived from the visit were educational and were to inure solely and strictly to the benefit of the visiting members of the class, and in no way, directly or indirectly, did the defendant benefit by it. It was a pure accommodation and inconvenience on the part of the defendant and its employees."

In the Roe case, decided by the St. Louis Court of Appeals, a Y.M.C.A. class, designated as an observation class, was taken through defendant's packing plant. It was shown that the visit was "purely educational, for the education of the boys themselves" and that it was "not for any advertising purpose of the plant itself." It was argued that plaintiff was an invitee because there was some benefit to the defendant from the visit; "that a recognized, practical method of advertising, and one of the best means for increasing business is to get the general public to visit a mercantile or manufacturing plant for the purpose of acquainting them with the modern hygienic system of conducting same, as well as familiarizing the visitor with each department and the operation thereof; that such visits on the part of the public result in benefit to the company whose plant is thus inspected is generally admitted, though the benefit that may accrue to the company out of the visit of any particular individual `may be long delayed.'"

The court, however, said concerning this argument:

"What might be the rule that should be applied to a case where the facts used as the hypothesis of appellant's argument were established by the record in the case, namely, that the manufacturing plant openly advertised and extended an invitation to the public to visit its plant, and for such purpose furnished employees to act as guides to such of the general public who accepted such invitation, is a question which under the facts in this case it is not necessary for us to decide, for we have no such case before us." [Roe v. St. Louis Independent Packing Co., 217 S.W. l.c. 337.]

It would seem that we do have for decision here the exact hypothetical case stated by the St. Louis Court of Appeals. The majority opinion of the Kansas City Court of Appeals correctly said upon this subject:

"It was also in evidence that for several years prior to the plaintiff's injury it was defendants' business plan to invite the public generally, and to arrange for, or have `appointments' with, classes from the various schools in Kirksville, some five or six times a year, to visit their place of business to witness the manner in which they prepared their products, `and it was our duty to tell them how and why we produced our stuff in the condition that we did.' When classes came, `they were taken to the place of instruction.' When they were to look at a `demonstration of ice cream freezing, I took them to the freezer and showed them how it was frozen and how it came out of the freezer, and where we put it in the hardening room.' Samples of ice cream were given the classes. Defendants would always call attention to the care exercised by them to keep sanitary the methods of preparation of their products. In other words, the facts themselves show (no matter what anybody may or may not say) that defendants invited and gave permission to students and others to visit their place of business and observe the manner in which it was conducted and their products made, this being for the purpose of effectively advertising their business. At the time plaintiff was injured, and continuously for several years before that date, there was in the window of defendants' place of business a sign reading `Inspection Invited.' It is urged that there is no evidence to show that plaintiff ever saw this sign or came to the place of business in response to the invitation contained therein, and the intimation is she could not be regarded as an invitee. However, the evidence is she did see it and had seen it at times when she had gone there to buy milk, sold in the front room. But the sign shows, and so does the treatment and attention given to those who did come, how defendants regarded their coming and what the purpose was in extending such invitation. Whether plaintiff's coming was in direct response to and acceptance of this direct and also implied invitation need not be expressly or affirmatively proved, since it seems that it was certainly because of the custom of defendants to have persons do so, and defendants' manner of receiving them and of showing special attention to them when they did come. So that an implied invitation to use premises arises when a benefit accrues to the owner thereof from such use or when the use is in the interest of both parties or is connected with the owner's business; and the duty of the owner of premises towards another who goes thereon as the result of an implied invitation is the same as if that person went thereon as the result of an express invitation. [Cleveland, C., C. St. L.R. Co. v. Powers, 173 Ind. 105, 88 N.E. 1073, 1077, 89 N.E. 485; 3 Sherman Redfield on Neg. (6 Ed.) sec. 706.] As shown hereinabove, there is evidence tending to show both an express and an implied invitation."

We agree with this conclusion and find that there is substantial evidence to so show. While the status of an invitee will not be accorded by permission to enter on or use the property, in the absence of any real benefit to the owner, yet where there has been a custom for persons to enter on the premises for certain purposes with the acquiescence of the owner, and invitation will be implied, although an invitation will not be implied from occasional use. [45 C.J. 821-22, sec. 231; see, also, Fleishmann Malting Co. v. Mrkacek, 14 F.2d 602; Richmond Manchester Ry. Co. v. Moore (Va.), 37 L.R.A. 258; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, 22 L.R.A. (N.S.) 1045, 17 Ann. Cas. 576; see, also, 27 A.L.R. 1018, note, following case of O'Rourke v. Marshall Field Co. (Ill.), 138 N.E. 625, 27 A.L.R. 1014.]

The evidence here not only tends to show a general invitation to the public generally as prospective customers, as part of defendants' advertising methods, to inspect their plant, but it tends to show, by their long continued custom of bringing school classes there and in furtherance of the same purposes instructing them as a part of their school work, a special inducement to the school authorities to bring them. It also tends to show more than a visit to gratify the desires of the students. Plaintiff was given no choice in the matter. When she and her class were assembled for their regular class work, they were told that their class work that day was to be in defendants' creamery. They were school children, under school discipline and taken to defendants' premises, so far as they were concerned for school purposes. As stated in defendants' brief this "was a part of their school work, it was not a lark or holiday." They were instructed there by defendants' foreman just as they would have been by their teacher at the high school. From the long-established custom of bringing this class and other classes there annually and instructing them in butter making and ice cream making just as any class is instructed in school, the jury would be justified in believing that such an arrangement of long standing grew out of and was based upon some benefit to defendants and implied an invitation to the school authorities.

Having determined that there was evidence to justify finding that plaintiff was an invitee, we hold that the trial court was right, in holding that a submissible case had been made, because of the duty to an invitee to take ordinary care to prevent his injury. [Glaser v. Rothschild, supra.] The testimony of defendants' foreman shows that he knew that fifteen-year-old high school girls would pick up and eat ice. There was no reason, as defendants suggest, why he would expect them to eat only one piece. The ice crusher and the churn were only three or four steps apart. Accepting defendants' theory that Pierson had shut off the power and the crusher was operating on its own momentum, it is obvious that high school girls of fifteen years of age could not be expected to know that the crusher was operated upon the same shaft which operated the churn, and that unless the power was completely shut off, even though the churn had stopped, the dangerous, hidden prongs would still be revolving inside of the ice crusher. More than that, this ice crusher was, at that time, particularly dangerous because a piece had been broken out of the front, which enabled one to reach into it and be caught by the prongs. It was shown this regrettable accident could not have happened, had it been in its normal condition. Due care, under these circumstances, to prevent injury to these young girls required that they be warned of its dangers before taking them to a place where they would be so near it when it was in motion.

The judgment is affirmed. Ferguson and Sturgis, CC., concur.

PER CURIAM:

The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All of the judges concur.