author: STORCKMAN, Chief Justice. FINCH, Judge HOLMAN, Judge

text:
    STATE ex rel. MERCANTILE NATIONAL BANK AT DALLAS, Dallas, Texas, Relator, v. James S. ROONEY, Judge of Division No. One of the Circuit Court of Clay County, Missouri, and Charles F. Curry & Company, a Corporation, Respondents.
    No. 51547.
    Supreme Court of Missouri, En Banc.
    April 11, 1966.
    Opinion Modified on Courts’ Own Motion and Motion for Rehearing Denied May 9, 1966.

      Arthur R. Kincaid, Hale, Coleberd, Kin-caid & Waters, Liberty, for relator.
    David R. Hardy, Frank P. Sebree, William W. Shinn, Mari W. Privette, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, S. Preston Williams, Williams, Norton & Pollard, North Kansas City, for respondents.
   STORCKMAN, Chief Justice.

This is an original proceeding in prohibition to prevent the respondent circuit judge from substituting the relator, a foreign executor, as the defendant in an action pending in Missouri at the time the original nonresident defendant died. The parties filed a stipulation of facts in which they agreed inter alia that all prior proceedings were incorporated by reference for the consideration of the court. From these sources we state the facts.

On December 30, 1960, Charles F. Curry & Company, herein sometimes referred to as Curry Company, filed in the Circuit Court of Clay County an action for damages in the aggregate amount of $212,250 against Wyatt C. Hedrick, a resident of the State of Texas. The suit was started by an attachment which was dissolved after defendant Hedrick entered his general appearance on February 26, 1961. Plaintiff’s petition sought damages for the conversion of an airplane which was alleged to have occurred in the State of Texas, damages for breach of warranty growing out of the defendant’s sale of the airplane to the plaintiff, and punitive damages arising out of the alleged conversion.

The trial before a jury resulted in a verdict for the defendant on both counts submitted. The plaintiff Curry Company appealed to the Supreme Court which reversed the judgment and remanded the cause for a new trial. See Curry & Co. v. Hedrick, Mo., 378 S.W.2d 522. The plaintiff was awarded a new trial on all issues of Count I, its claim for damages for breach of warranty. The new trial on Count III was limited to the issue of damages only since the Supreme Court found that the evidence was sufficient to establish that the defendant was guilty of conversion as a matter of law.

The decision of the Supreme Court was rendered on May 1, 1964, and four days later, on May 5, 1964, the defendant Hed-rick died while a resident of the State of Texas. The relator Mercantile National Bank at Dallas, Texas, also a resident of Texas, was appointed in Texas and under the authority of the laws of that State as the executor of the last will and testament of Mr. Hedrick. On November 13, 1964, the plaintiff Curry Company filed in the Circuit Court of Clay County its motion to substitute the executor Mercantile National Bank at Dallas as party defendant in the place of Mr. Hedrick and undertook to serve notice of the motion by publication in a newspaper of general circulation in Clay County, Missouri. On January 6, 1965, the executor, appearing specially, filed its motion to quash the pretended service by publication and to deny the plaintiff’s motion for substitution. The matter was presented on the agreed statement of facts and thereafter on May 14,1965, the respondent judge filed a notice that he would on June 10, 1965, enter an order substituting the executor Mercantile National Bank at Dallas as the party defendant and would overrule the motion of the executor to quash service of process on it. Thereupon, the executor as relator filed its petition for a writ of prohibition and this court issued its preliminary writ upon which the issues were joined.

The statement of facts in paragraph 7 states that the publication of the notice of the motion to substitute was “in all respects, in accordance with applicable legal provisions save for the contention of said executor that any service under the facts and circumstances is void and of no force and effect.”

The relator asserts (1) the common-law rule is that an out-of-state legal representative cannot be substituted in the place of a deceased defendant; (2) in any event the substitution of a nonresident legal representative requires specific legislative authority and the Missouri statute does not so provide; (3) in the circumstances of this case a statutory enactment is not warranted and such a "construction of existing statutes would violate provisions of the Constitution of the United States and of the State of Missouri; (4) statutes permitting such substitution are based on the police power of the state and other factors not present in this case; and (5) a judgment rendered in Missouri against the Texas executor would not be entitled to recognition in Texas.

The respondents contend that (1) Mr. Hedrick, by submitting to the jurisdiction of Missouri courts, bestowed on the state jurisdiction to conclude the litigation by substituting his nonresident executor as the party defendant; (2) Missouri statutes provide that the lawsuit can proceed to a conclusion by substituting the relator as defendant; and (3) relator’s argument based on the common law and its speculation as to what a Texas court might do are irrelevant and its arguments about constitutionality and statutory construction should not prevent this court holding that the relator may properly be substituted.

The statutes upon which the respondents chiefly rely are § 507.100, RSMo 1959, V.A. M.S., relating to substitution of parties upon death, incompetency, or transfer of interest, and § 506.160, relating to service by mail or publication. Supreme Court Rules 52.12 and 54.08 deal with substitution and publication respectively, and in substantially the same language the statutes employ. The respondents do not contend that the court rules are more favorable to them or that the power of state courts to acquire jurisdiction of a nonresident executor is not dependent on statutory enactment; therefore, we will limit our discussion to the statutory law. See Mennemeyer v. Hart, 359 Mo. 423, 221 S.W.2d 960, 963 [8, 9].

In the view we take of the case before us, the writ of prohibition must be made permanent because in any event statutory authority is necessary to substitute the foreign executor as the party defendant in the pending action and to acquire jurisdiction over such executor, and no such statutory authority exists. It will, therefore, be unnecessary to discuss the power of the state to enact valid statutes so providing and other questions not relevant to the determinative issues.

As previously indicated, this is an action for the recovery of a personal judgment and the Curry Company now seeks to substitute the relator in order to obtain a money judgment against the relator as executor of Mr. Hedrick’s estate. Generally, a court’s jurisdiction in personam is confined to persons within the territorial jurisdiction of the court and service of process beyond such limits is ineffective to confer jurisdiction over the person served. State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, 407[9].

Any change in the rule that service of process beyond the territorial jurisdiction of the court is ineffective to confer jurisdiction in personam over the person served is dependent on valid legislative action. State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, 407[10]; State ex rel. Kissinger v. Allison, Mo.App., 328 S.W.2d 952, 958 [3]; State ex rel. Ballew v. Hawkins, Mo.App., 361 S.W.2d 852, 857[7]; State ex rel. Public Service Commission v. Thompson, Mo.App., 379 S.W.2d 824, 826; Restatement of the Law, Judgments §§ 22 and 23, pp. 103 and 109; Annotation: 78 A.L.R.2d 398, § 1; 72 C.J.S. Process §§ 25 and 54, pp. 1022 and 1067; 42 Am.Jur., Process § 52, p. 43.

The authorities relied on by the respondents fall short of demonstrating that the Circuit Court of Clay County is empowered to acquire jurisdiction over the executor of the estate of Wyatt C. Hedrick, deceased. The respondents contend the nonresident Hedrick in his lifetime had sufficient “contacts” with the State of Missouri to subject his executor to the jurisdiction of its courts under the “minimum contacts” rule declared by the United States Supreme Court. They say he consented to the litigation and participated in it over an extended period of time and assert this is sufficient basis for jurisdiction.

Typical of the cases cited on the question of “minimum contacts” are International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. Both of these cases involve the validity of service on a nonresident corporation under specific provisions of a state statute when the foreign corporation was not admitted or licensed to do business in the state. Both were original actions and the substitution of a “proper party” was not an issue. The International Shoe case involved the collection by suit of contributions to the state unemployment compensation fund. There was a specific statute of the State of Washington as well as a federal statute declaring that no person would be relieved from making payments to a state unemployment fund on the ground that it was engaged in interstate commerce. The present Washington statute appears to be § 50.24.120 of the Revised Code of Washington Annotated, which makes the liability to suit depend upon the nonresident exercising “the privilege of having one or more individuals perform service for it within this state” and providing for service upon the secretary of state. The case held that the nonresident corporation was sufficiently present in the state to justify constructive service. In McGee v. International Life Insurance Company, a California statute specifically provided that certain acts by a nonadmitted foreign insurer would constitute an appointment by such insurer of the commissioner of insurance as its true and lawful attorney for the service of process. See §§ 1610-1618, West’s Annotated California Codes, Vol. 42, Insurance. Among the acts specifically mentioned are the issuance or delivery of an insurance policy to residents of the state, the solicitation of applications and the collections of premiums. The McGee case holds that the state statute did not violate due process and that service of process pursuant thereto was sufficient to support the rendition of a personal judgment.

Mr. Hedrick’s entry of appearance and participation in the litigation standing alone might be of doubtful value as a ground for asserting jurisdiction over his executor in view of § 14, Art. I, Constitution of Missouri 1945, V.A.M.S., which provides: “That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, * * This section has been held to mean that unreasonable and arbitrary burdens cannot be imposed on litigants in our courts whether they be residents or nonresidents. State ex rel. Kennedy v. Remmers, 340 Mo. 126, 101 S.W.2d 70, 74—75 [ 11—13]; Collar v. Peninsular Gas Company, Mo., 295 S.W.2d 88, 90-93 [2-10]; Art. I, § 10, Constitution of Missouri. See also State ex rel. Southern Ry. Co. v. Mayfield, 362 Mo. 101, 240 S.W.2d 106. However, we need not and do not make any ruling on this issue. We do not reach that question because this state has no legislative enactment purporting to provide, that the sort of contacts relied on by the respondents would constitute grounds for acquiring jurisdiction over a nonresident such as was provided by law in International Shoe, McGee and other similar cases cited by the respondents.

One of two federal cases relied on by the respondents is Luster v. Martin, 7 Cir., 58 F.2d 537, a stockholder’s suit which was pending in Wisconsin against the president of a corporation who was a resident of Missouri at the time he died. The court held the action was properly revived against the Missouri executor of the president and the District Court of Wisconsin acquired jurisdiction of the executor under 28 U.S.C.A. § 778. This federal statute expressly provided that when a party to a suit in any United States court dies before final judgment the executor or administrator of the deceased party may prosecute or defend such suit to final judgment, but the statute further provided that scire facias could be issued to the executor or administrator and served in any judicial district by the marshal thereof. Missouri has no such statute and, unlike the federal system, Missouri courts ordinarily have no jurisdiction beyond the territorial limits of the state.

The same is true in legal effect as to Iovino v. Waterson, 2 Cir., 274 F.2d 41, pp. 44-45, 79 A.L.R.2d 519, also cited and relied on by the respondents, wherein it is stated:

“Federal Rule 25(a) (1), which we quote in the margain, carried forward 28 U.S.C.A. § 778, including the 1921 amendment permitting revivor by or against foreign administrators or executors. Although the simple phrase used in the Rule, ‘substitution of the proper parties,’ might not alone have sufficed to evidence that intent, the retention of the 1921 provision for service ‘in any judicial district’ and the note of the Advisory Committee make it plain that the purpose was to include the 1921 amendment for revivor by or against foreign personal representatives, 4 Moore, Federal Practice ¶ 25.05, at 518 (2d ed. 1950).
“The final chapter in this history is the repeal of 28 U.S.C.A. § 778 by the Revision Act of 1948, 62 Stat. 993. However, since this repeal was for the stated reason that § 778 was ‘Superseded by Rules 25 and 81 of the Federal Rules of Civil Procedure,’ H.R.Rep.No. 308, 80th Cong., 1st Sess., Rule 25(a) (1) must still be construed to include foreign administrators and executors, 4 Moore, Federal Practice ¶ 25.05, at 518.”

There are also well-recognized differences between the jurisdictional capabilities of the federal and state courts. See 42 Am.Jur., Process § 54, p. 45. The respondents have not cited any case in which jurisdiction was acquired of a nonresident without some semblance of legislative authorization.

The relator cites Restatement of the Law, Conflict of Laws, § 512, which states that: “No action can be maintained against any administrator outside the state of his appointment upon a claim against the estate of the decedent.” The American Law Institute is in process of revising this first edition and preparing the Second Restatement of Conflict of Laws. Tentative Draft No. 11 issued April 23, 1965, although not necessarily in final form, restates § 512 in a way which we deem to be in keeping with the present state of the law in this state. The pertinent portions of Tentative Draft No. 11 are:

§ 512. Suit Against Foreign Executor or Administrator.
“An action may be maintained against an executor or administrator outside the state of his appointment upon a claim against the decedent when the local law
of the forum authorises suit in the state against the executor or administrator and
“(a) suit could have been maintained within the state against the decedent during his lifetime because of the existence gf one or more bases of jurisdiction, other than mere physical presence (see §§ —-), or
“Comment:
“b. Necessity of statute. The courts have not entertained suit against a foreign executor or administrator except when authorized to do so by statute. This is not because the state in question necessarily lacked judicial jurisdiction to have the case tried in its courts (see Comment c). This is because the courts have deemed themselves incompetent to entertain the suit in the absence of statute (see § ). So a statute, as a nonresident motorist statute, which would have authorized suit in the state against the decedent during his lifetime will not without more be held to authorize suit against a foreign executor or administrator after the decedent’s death. It is necessary that the statute authorize suit against the foreign executor or administrator. This reluctance of the courts to find themselves authorized to entertain suit against a foreign executor or administrator stems from the fact that an executor or administrator holds the assets of the decedent which comes into his possession subject to the direction of the court which appointed him.” Italics added.

An application in this state of the foregoing statement is demonstrated by the cases of Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, and State ex rel. Sullivan v. Cross, Mo., 314 S.W.2d 889. In Harris the first Nonresident Motorist Act was held to violate constitutional limitations and in Cross the Act after appropriate amendments was held to be valid.

The “bases of jurisdiction” referred to in tentative § 512 above are quite well outlined in Restatement of the Law, Judgments, §§ 22 and 23 as follows:

§ 22. Jurisdiction over One Who Carries on Business in a State.
“A court by proper service of process may acquire jurisdiction over an individual not domiciled within the State who carries on a business in the State, as to causes of action arising out of the business done in the State, if a statute of the State so provides at the time when the cause of action arises.” Italics added.
§ 23. Jurisdiction over One Who Does Acts or Owns Things in a State.
“A court by proper service of process may acquire jurisdiction over an individual not domiciled within the State who does acts or owns things in a State which are of a sort dangerous to life or property, as to causes of action arising out of such acts or such ownership, if a statute of the State so provides at the time when the cause of action arises.” Italics added.

It will be noted that both §§ 22 and 23 impose the condition that a statute of the state be in existence at the time the cause of action arises.

In support of the proposition that under the common law an out-of-state representative could not be substituted in the place of a deceased defendant, the relator also cites Rentschler v. Jamison, 6 Mo.App. 135, In re Thompson’s Estate, 339 Mo. 410, 97 S.W.2d 93, 1 Am.Jur.2d, Abatement, Survival, and Revival § 124, p. 137, and Annotation—Jurisdiction Over Foreign Executor, 77 A.L.R. 252. These authorities generally support the proposition that in an action in personam when a nonresident defendant dies his foreign executor or administrator cannot be substituted for the decedent. To the same effect is Hill v. Barton, 194 Mo.App. 325, 188 S.W. 1105. We need not undertake to determine in this case the present-day efficacy of these Missouri decisions because they do not bear directly on the necessity of specific statutes providing for jurisdiction over nonresidents.

The statutes relied on by the respondents relating to the substitution of a foreign executor or administrator for a deceased defendant in an action in personam and statutes providing for service of process by publication in such cases must be construed so as to effectuate their true effect and meaning as disclosed, in part at least, by the objectives of the legislation. Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763; In re Duren, 355 Mo. 1222, 200 S.W.2d 343, 352[8], 170 A.L.R. 391; Section 1.010, RS Mo 1959, V.A.M.S.

The pertinent portion of substitution statute, § 507.100 subd; 1(1), provides that: “If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. The motion for substitution may be made by the successors or representatives of the deceased party or by any party and, together with the notice of the hearing, shall be served on the parties as provided in section 506.100, RSMo, and upon persons not parties in the manner provided for the service of a summons.” The survival statute, § 537.010, provides that for all wrongs done to the property rights or interests of another, an action may be brought “against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract.” It, therefore, appears that an executor or administrator is a “proper party” to be substituted for a deceased defendant; however, the question remains whether a nonresident executor or administrator of a nonresident defendant is within the purview of the relevant statutes.

Neither § 507.100 nor any other applicable statute expressly provides that a “proper party” shall include a nonresident executor or administrator. The language of § 507.-100 subd. 1(3) tends to show a contrary or limited intention in that it requires the substitution to he made within nine months after the publication of the first notice of letters testamentary or of administration which is the same period of time now required for filing claims in probate court as provided by §§ 473.360 and 473.363, the latter relating directly to substitution in pending cases. The time for substitution has always been geared to the time allowed for filing probate claims in Missouri. See Laws 1943, p. 364, § 22(a)

(3). If the intent were to include foreign executors, it would seem the language used would be such as to permit compliance with the limitation periods for claims in other states. The history of § 506.210, relating to nonresident motorists, is indicative of the specificity deemed necessary to make a statute applicable to nonresident executors and administrators. In Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, 767[6-8], 769[11, 12], the first statute was held to be deficient and unconstitutional. After corrective legislation the Act was held to be a valid exercise of the police power in State ex rel. Sullivan v. Cross, Mo., 314 S.W.2d 889. While the Cross case dealt with a different category, the holding requiring specific legislative provisions is applicable to the case at bar. See Annotations: 2 L.Ed.2d 1667, § 3[b], and 94 L.Ed. 1173. Section 507.100 and related statutes do not express a legislative intent to bring foreign executors and administrators within the scope of their operation.

Furthermore, § 507.100 is not complete within itself since it provides that the motion for substitution and notice of the hearing shall be served “upon persons not parties in the manner provided for the service of a summons.” The Texas executor could not be served in the state and notice was given by publication in a newspaper of general circulation pursuant to § 506.160, RSMo 1959, V.A.M.S. The respondents do not purport to rely upon a special statute providing specific contacts or circumstances deemed to be a sufficient basis for acquiring jurisdiction over nonresidents. Section 506.160 is the general publication statute and provides for limited instances in which service by mail or publication may be used; it reads as follows: “1. Service by mail or by publication shall be allowed in all cases affecting a fund, will, trust estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court, or in any special proceedings in which notice by mail or by publication is authorized, including but not limited to actions to quiet title and actions to ascertain and determine title to real estate. If the defendant so served does not appear, judgment may be rendered affecting said property, res or statuts within the jurisdiction of the court as to said defendant, but such service shall not warrant a general judgment against such defendant.” Section 506.160 does not authorize service by publication on the nonresident executor in this case. In fact there is an express prohibition against the rendition of a general judgment on this kind of service. The attempt by Curry Company to serve the foreign executor by publication under § 506.160 was without legal force or effect.

The respondents speak of the “judgment” of the Supreme Court as if the decision rendered by this court on appeal gave the case on remand a greater stature than a pending case within the purview of § 507.100. The order and mandate of this court was that the judgment for the defendant be “reversed and the cause remanded for new trial as to Count I and for new trial on the issue of damages alone under Count III.” Curry & Co. v. Hedrick, Mo., 378 S.W.2d 522, 537. Generally, the law as applied to the facts in the opinion of the appellate court constitutes the law of the case on retrial and subsequent appeals unless there is a substantial change in the issues or evidence. Feinstein v. McGuire, Mo., 312 S.W.2d 20; Venditti v. St. Louis Public Service Co., 362 Mo. 339, 240 S.W.2d 921; McNatt v. Wabash Ry. Co., 341 Mo. 516, 108 S.W.2d 33. For instance the issue of punitive damages might not have been available to the plaintiff on retrial since the general rule is that punitive damages cannot be allowed where the defendant dies before trial and before the right becomes vested. 25 C.J.S. Damages § 125(3), p. 1153; 1 Am.Jur.2d, Abatement, Survival, and Revival, § 59, p. 93. It is obvious that a final judgment has not been rendered in the sense that it is entitled to full faith and credit and that the litigation has been terminated. The fact that the law of the case has been established as to some of the issues presents a strong argument for legislation if constitutional limitations permit, but it has no bearing on our present problem. Issues remain to be tried, but the substitution of the foreign executor cannot be attained under existing statutes within the proper limits of the judicial function.

The situation in this case is quite well-summed up by this statement from an annotation entitled, “Nonresident- — Tort—Jurisdiction”, in 78 A.L.R.2d pp. 398-399: “Attention is called to the fact that, assuming that the question of power is answered in the affirmative, a court may yet be precluded from acquiring jurisdiction to render a personal judgment against the • nonresident on grounds not discussed in the present annotation, for instance, because statutory authority to exercise such jurisdiction or for service of process is lacking, or because the state has failed to adopt a reasonable method of notification.” Emphasis supplied.

The courts have no proper jurisdiction to accommodate the law of Missouri to the apparent equities of a particular case. As we said before by reference in Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, at page 768, the court cannot supply that which the legislature has, either deliberately, or inadvertently, or through lack of foresight, omitted from the controlling statutes. In a Caveat to § 23, the Restatement of the Law of Judgments states: “The Institute expresses no opinion on the question whether the rule stated in this Section may be extended to cover acts or things not dangerous to life or property.” See also Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283. Likewise this court can express no opinion on that subject until it is presented under a statute extended to cover the substitution of a foreign executor or administrator in a pending case and providing adequately for service of process.

The preliminary rule in prohibition is made absolute.

HENLEY, EAGER and DONNELLY, JJ., concur.

FINCH, J., concurs in separate concurring opinion filed.

HYDE, J., concurs and concurs in concurring opinion of FINCH, J.

HOLMAN, J., dissents in dissenting opinion filed.

FINCH, Judge

(concurring).

I reluctantly concur in the opinion of Chief Justice Storckman. I do so because I have concluded that we cannot rule otherwise in the absence of sufficient statutory authorization to substitute the nonresident executor of Wyatt C. Hedrick.

This case has been in the Missouri courts since 1961. The liability of deceased defendant as to the conversion covered by Count III was settled by our opinion reported at Mo., 378 S.W.2d 522. Only the amount of damages remained to be settled in the trial on remand. It makes little sense to be compelled to say to the parties that the death of the nonresident defendant nullified all of these efforts and that this litigation cannot be carried on to completion in the Missouri courts. Yet that is what we must do for the reasons given by Judge Storckman. The need for remedial legislation is evident.

In examining this question in an effort to find some basis on which this case could proceed in our courts, I reviewed the cases wherein a judgment nunc pro tunc is entered subsequent to the death of a defendant. This has been done where there has been a trial and a jury verdict but no judgment has been entered at the time of defendant’s death. It also has been done where a case has been tried without a jury and is under submission but without a decision or judgment at the time of defendant’s death. In those instances it has been stated that the cause is ripe for judgment and the court has proceeded to enter judgment nunc pro tunc as of the date of the jury verdict or the date of submission of the court tried case. The judgment then is treated as though it in fact had been entered prior to the death of the defendant. I have concluded that we cannot extend that procedure to this case. In the instances mentioned the trial had been completed and nothing remained for the parties to do prior to judgment. Such is not the case here. A full fledged trial on the issue of damages remains and this necessitates the presence of the parties in the litigation to present their side of the case. A substitution of parties is required. For this reason, I have concluded that the nunc pro tunc procedure is unavailable. Only by virtue of sufficiently specific enabling legislation may this substitution be made.

HOLMAN, Judge

(dissenting).

I respectfully dissent from the principal opinion in this case. As I understand the issues there is no contention that the method used in obtaining service on relator was illegal. In that connection relator’s counsel stated at the time of oral argument that no question of service is involved in this proceeding but that the question for decision is, in effect, whether a Missouri court has jurisdiction to order substitution of relator in view of the constitutional provisions he contends should be applied (Article IV, §§ 1 and 2, and the Fourteenth Amendment, § 1, of the Constitution of the United States, and Article I, § 10, Constitution of Missouri 1945).

It is provided in Civil Rule 52.12(a) that if a party dies “the court shall on motion order substitution of the proper parties.” I think our decision as to whether relator is a proper party to be substituted in the Curry case should depend on the precise factual situation here presented. In considering that question we should consider the fact that deceased saw fit to enter his appearance in the Curry suit and in so doing obtained the release of his attached property; that deceased defended the Missouri action in both the Circuit and Supreme Court, and that in this court a final judgment was entered against said defendant on the question of liability under Count III and the case was remanded for further trial proceedings.

I think the activities of deceased in the Curry case were a sufficient contact with Missouri and its courts that the continuation of the suit against his executor would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95. See also McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. Moreover, it is reasonable to say that when deceased entered his appearance in the case and litigated to the extent heretofore indicated he is deemed to have consented that his executor be subject to the jurisdiction of the court the same as he was. See Iovino v. Waterson, 274 F.2d 41, 79 A.L.R.2d 519 (2d Cir.). I also have the view that since one important phase of the case had been finally adjudicated prior to the death of defendant his executor (whether resident or nonresident) should be bound by that judgment, and the only reasonable method of procedure in that event is to substitute the executor as the defendant and conclude all issues in the case. See Restatement, Conflict of Laws, § 517.

Summarizing, I would hold that the substitution of relator for the deceased defendant in the Curry case is authorized by Civil Rule 52.12, and that relator is a “proper party” for substitution under the provisions of that rule; that the rule, when so construed, does not deny due process nor violate any of the other constitutional safeguards mentioned; and that the court has jurisdiction to order substitution of relator and that such an order will not offend “traditional notions of fair play and substantial justice.”

      . SOA Am.Jur., Judgments, § 79, p. 219.

      . Clark v. Mississippi Valley Trust Co., 357 Mo. 785, 211 S.W.2d 10; 30A Am.Jur., Judgments, §§ 82-90, pp. 220-224; Annotation 3 A.L.R. 1408; Annotation 68 A.L.R. 264.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Paul JAMES, Appellant, v. SUNSHINE BISCUITS, INC., and V. W. Staley, Respondents.
    No. 51328.
    Supreme Court of Missouri, Division No. 1.
    April 11, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied May 9, 1966.
    Thaine Q. Blumer, Blumer & Wright, Kansas City, for plaintiff-appellant.
    Lyman Field, Rogers, Field & Gentry, Kansas City, for respondents.
   HIGGINS, Commissioner.

In this wrongful death action plaintiff had a verdict and judgment for $20,000. The court overruled defendants’ motion for new trial but sustained their motion to set aside verdict and judgment and entered judgment for defendants.

On July 18, 1962, plaintiff’s wife, Virginia June James, was employed by defendant Sunshine Biscuits, Inc. at Sunshine’s plant in Kansas City, Kansas. The plant produced crackers, cookies, and candy. Defendant V. W. Staley was the superintendent and ranking employee on the night shift. There were no nurses or physicians present on the night shift and the first-aid room was locked at night. Staley carried a key to the first-aid room and he was experienced in caring for injured and ailing employees. Sunshine’s policy was to have him call the company physician for severe illness or injuries and to try to get sick employees to their families or family physicians. He also could give temporary relief by medicines kept in the first-aid room. He would average one or two emergencies a month requiring him to call a hospital and send an employee there due to the plant physician being unavailable. Sick employees were to be relieved at their work and permitted to obtain a physician of their choice.

At about 3 P.M., July 18, 1962, Mrs. James and some coworkers arrived at work from Richmond, Missouri. Mrs. James was in good spirits, was not complaining of any illness, and appeared normal and in good health. She was not under medical care and her last medical treatment was for a sunburn.

At 7 P.M. the plant shut down for the 35-minute lunch period and Mrs. James went outside the plant and purchased a ham and cheese sandwich and some potato salad from a Rainbow Catering Company truck. Later she became ill and left her place at work on the production line, and at 7:20 the following morning she died. Since the issue is whether there was substantial evidence that delayed medical care caused the death, we detail the evidence relating to the illness, treatment, hospitalization, and death.

Betty Sue Roberts, one of decedent’s coworkers from Richmond, Missouri, saw Mrs. James at the first break after the lunch period. Someone advised her that Mrs. James was sick and she went to the lounge to see about her. “There was probably eight, ten girls in there. * * * When I walked in, she was vomiting. * * She was standing with the (toilet) door open, and she had this green stuff coming out of her mouth.” Neither she nor the others assisted her from the toilet. “I asked her if she wanted to go home, and she said she thought she would be all right in a few minutes.” She left the lounge and went to the cafeteria to join her friends for the remainder of the 15-minute break. After the break she returned to her machine. “It hadn’t run very long at all until they came and told me I was wanted in the back.” She hunted up Van (Mr. Staley) and he told her, “Go in there and keep that girl quiet.” She could not fix the time of the break or how long after the break she returned to the lounge. Upon her return Myra Hazen and Charles Lanning were present. “He was trying to keep her quiet.” She assisted him in getting water for Mrs. James and “we got cardboard and put under her head.” Staley came in carrying some Kaopectate and she, Lanning, and Hazen administered it to Mrs. James. Lanning shut off the vent because Mrs. James was cold and Staley got some cloth candy covers to put over her. “All the time we were in there, June was hollering for help.” Staley asked her if she knew any doctors and she replied that she did not. “Mr. Lanning wanted to take Mrs. James to the hospital, which was about ten or fifteen minute’s drive from there and Van didn’t want him to. * * * he just kept saying he was handling it.” She said that about 10 o’clock, “She (Mrs. James) was screaming for a doctor. * * * she begged him (Staley) for a doctor, too.” Of Mrs. James’s condition at this time, she said, “She had been vomiting. She was wet with perspiration * * *. Her clothes were just soaked with everything. I mean she was — had diarrhea, vomiting, and there was sweat. * * * Everything was a mess in. there, and it smelled horrible.” When she got off work at 11 P.M., Dr. Flanders was attending Mrs. James and she was taken by ambulance to the hospital. Mrs. Roberts rode in the ambulance with the patient.

Charles Lanning was an electrician on the night shift at Sunshine. At about 9 P.M. he became informed that a lady was sick in the ladies’ lounge and, upon approaching the lounge, “I heard this lady moaning and sick and hollering for a doctor. * * * she had vomit all over the front part of her dress, and she had diarrhea which was evidenced all over the place, and she had perspiration on her uniform. * * she told me that she was unearthly sick.” He asked one of the girls to call Van Staley and he came to the lounge. They talked about getting the lady to a doctor and the witness said, “I told him I would take her up to Bethany Hospital. * * * The only thing that he done, and that was a little bit later than that, he went back to the First Aid Room and came back with a bottle of this Kaopectate. * * * It seems to me it was around 10:00 o’clock. * * * About 10:00 o’clock, he said that he would call a doctor.” When informed that it would be about one hour before the doctor arrived, the witness said he offered to take the lady to the hospital in his car. The doctor (Dr. Flanders) arrived around 11 P.M. He took over, talked to Mrs. James, and did not send her to the hospital immediately. An ambulance was called “between 11:30 and quarter of twelve,” and it arrived at 12 o’clock. The witness was present when Betty Roberts arrived around 9:30 and at the discussion concerning calling Mrs. James’s family.

The ambulance driver, Glenn Pittser, described Mrs. James as a sick woman when he picked her up. She was in charge of Dr. Flanders and she was delivered at St. Lukes Hospital in Kansas City, Missouri, about 12:10 or 12:15 on the morning of July 19th.

Miriam Good was also one of the group who rode to Sunshine from Richmond, Missouri. According to her, Mrs. James got sick and left the line a little after 8 o’clock. She was gone not over five minutes, worked for about ten minutes more, got sick, and left again. She next saw Mrs. James in the lounge around 9:30 at the break time. “She was sick. * * * I just knew she was sick, and she was pale looking, and I — I just didn’t pay any attention to her clothes.” Around 11:30 at quitting time she saw Mrs. James again. She was lying down on the couch and her appearance was “awful.” Dr. Flanders, Mr. Staley, Betty Sue Roberts, and others were present.

Patricia Lee Good, another of the group from Richmond, saw Mrs. James at the 9:30 break. “She was in the restroom. * * she was back vomiting, and she was awfully sick.” She next saw Mrs. James at 11:30 on the couch in the lounge. Dr. Flanders was present. “She was begging someone to get her a doctor and get her out of there, and she wanted someone to call her husband.” According to her, Mrs. James looked different at 11:30 from her appearance at 9:30.

Admissions of defendant Staley were that he was talking to Myra Hazen about 8:15 P.M. and Mrs. James asked Mrs. Hazen to relieve her. His next notice of Mrs. James was about 9 o’clock when Mrs. Hazen informed him that Mrs. James was sick and needed something for an upset stomach. He saw Mrs. James in the lounge about 9:15 and Mr. Lanning appeared within five minutes. “We both tried to get her to take some Kaopectate. * * * I think it was a little later than that she asked about the doctor. It was after 9:30 or about 9:30 when the girls started going back off their break, and at least Mr. Lanning and Miss Roberts and myself stood outdoors — I mean right out the door there and talked about it, and I asked at that time who their family doctor was so we could try, you know, to get hold of him.”

He also testified that when neither Mr. James, Mrs. Roberts, nor Mr. Lanning knew of a local doctor, he decided between 9:45 and 9:50 to call the company doctor, Dr. Flanders. (Dr. Flanders died before the trial.) The doctor called him back in five to ten minutes, at which time he advised the doctor that Mrs. James “was a pretty sick woman, and that she complained of having stomach cramps and had begun to vomit at that time, and that I really wanted information on what to do.” He also told the doctor of the involuntary bowel movements and urination that Mrs. James was experiencing. He was advised to continue with the Kaopectate until the doctor could get there and that he would come right over. Staley did not consent to move Mrs. James because he had put the matter into the doctor’s hands. Dr. Flanders arrived at 11 o’clock and “started to giving her some more medication, sitting down beside her and talking to her, and trying to — giving her an examination or find out what was wrong with her. * * * He turned around to me right at 11:30 and asked me to take him to a phone where he could call the hospital and an ambulance.”

Myra Hazen stated that she was the steward in the night shift icing department. She saw nothing wrong with Mrs. James at the 7 o'clock supper break. She next saw Mrs. James when she relieved her at 9 o’clock. She came back after five or ten minutes, stayed a short time, and left again. During the break from 9:30 to 9:45 she observed Mrs. James “to be quite ill at that time, had been vomiting and also diarrhea.” She got word to Staley after that, around 10 o’clock, and they tried to give her the Kaopectate.

Clara Pickett saw Mrs. James leave the line. “She said she had a burbling in her stomach, and she said she felt ill, and then all of a sudden, she had to leave. She came right back. * * * I never did see her vomit.” She saw Mrs. James again at the 9:30 break and “she didn’t look too bad. She never looked like she was really bad sick. * * * they had cleaned her up, but you could still smell the odor.”

Medical evidence consisted^ of the St. Luke’s Hospital record and the testimony of Waldo S. Holt, M.D.

Dr. Holt first saw Mrs. James upon her arrival at St. Luke’s Hospital about 12:00 or 12:15 on July 19, 1962. “I carried out as complete an examination as I could, at the time, and it was certainly apparent that she was in extreme pain and what I would call a moribund condition, very critically ill at that time, and blood pressure was either unobtainable or very, very low. It was in shock level when I first saw her, first obtained it. * * * she was covered with feces and vomitus from her head to her foot. She reeked * * *. It was apparent that she was dehydrated, because she had poor skin tone. She had obvious dryness of the mucuous membranes, and * * * was complaining bitterly about having extreme pain * * *. It was difficult to get her to localize it * * *. The first thing was to try to get her out of shock and institute measures to bring the blood pressure up * * Dr. Holt stayed with her until around 4:30 A.M. when her blood pressure “came up to around 110 over 70, which is a more respectable reading * *

The doctor obtained some history from Mrs. James when she first came into the hospital at which time she vomited some, “and I saw some cherries (which she ate from the chocolate covered cherry line at the plant) that was in the vomitus, and she was having bowel movements all the time; but in between all that, she was telling me the best she could, and then there was also someone (Mrs. Roberts) who was with her who was filling in some details, who apparently had gone down to the vending wagon with her or something like that, and gotten some food.” His impression upon Mrs. James’s hospital admission was: “Severe food poisoning due to ? potato salad etc. — shock—dehydration—condition poor.” The hospital record shows: “5:00 Resting off and on * * * 6:00 Bed changed, and sponge bath given. * * * Pt. (patient) alert — asked to have 02 (oxygen) removed. 7:10 Pt. suddenly gasped. Turned cyanotic. 7:15 Dr. Theis & Holt notified Dr. Theis here. Adrenalin * * * given. * * * Unable to obtain B. P. Artificial resp. appled by Drs. Theis & Peterson. Adrenalin 1 c.c. given in heart muscle. Dr. Holt here. Resuscitator applied. Unable to obtain pulse. Resp. ceased. 7:35 Dr. Holt pronounced pt’s. demise.”

An autopsy was performed of which Dr. Holt said: “We could actually not find an anatomical cause of death, * * * and I think only from inference or by deduction can we say what she finally died of, but there was no anatomical cause of death.”

The testimony of Dr. Holt in respect to cause of death is quoted in additional detail and context:

“Q (Mr. Blumer) All right. What was your opinion as to the cause of death?

“MR. FIELD: Now, just a minute, I object to that, or preliminary to objection, I want to ask the Doctor a question. If I understood you, Doctor — you correct me if I am wrong- — you said you could not give any diagnosis or medical opinion, you could only give a speculation or a * * * Did I understand you that you would be unable to give a medical opinion as to the cause of her death, and that anything that you would respond to in that connection would be a speculation or an educated guess or something like that? Is that right?

“THE WITNESS: Well, I would say that it would be — really, a logical deduction would be about the only thing we could make from the circumstances. I still cannot give you an anatomical cause of death, or I can't really tell you why she died. MR. FIELD: You would have a medical opinion on it? MR. BLUMER: Well, he said he did have a — MR. FIELD: Wait just a minute, I want to complete my interrogation before I make an objection. I mean you couldn’t give a medical opinion and your medical opinion as to what the cause of death was? THE WITNESS: Nothing based on what was actually found at the autopsy, but if you ask me what I thought had caused her death — -MR. FIELD: You mean your impression ? THE WITNESS: That’s right, my impression would be that she had acute food poisoning. MR. FIELD: Yes, but you couldn’t — that wouldn’t reach the dignity of a diagnosis or a medical opinion, would it, because there just weren’t enough facts? THE WITNESS : It’s not scientifically proven, no. * * *

“Q (Mr. Blumer) Let’s see. I am back to the question, then. What is your opinion, Doctor, as to the cause of her death? A The only thing that I can say on that is just based upon the facts as I know them, the most likely thing is she had acute food poisoning, the exact etiology of which was undetermined. By that, I mean we never could prove an organism such as Salmonella or Shigella or anything like that that might have caused her death.

“Q Now, you also said you found her suffering from shock and dehydration? A Yes, sir. Q Would you have an opinion as to the effect of shock and dehydration upon her general condition leading to her death? A Well, it certainly isn’t unusual when people come in in shock with blood pressure unobtainable that they do not get well, because they’re just too far gone.

“Q Well, let me ask you this, then, Doctor: Would you have an opinion as to whether or not the shock and dehydration contributed or was a cause in her death? A Oh, I would say so, definitely. I mean she had lost so much fluid, both from the rectum as well as by the mouth, that she was in shock, and she was dehydrated. She had lost a lot of chemicals that the body needs and needs to be replaced if we’re going to live.

“Q Now, Doctor, what did you say caused dehydration and shock? A The loss of all this fluid and chemicals. I mean when we vomit, we’re vomiting sodium and chloride and potassium. When we move our bowels and have diarrhea, these profuse bowel movements reduce the important chemicals, potassium, sodium and chlorides the body needs. That’s why she was in shock, and that’s why we were trying to replace them.”

Plaintiff asked two hypothetical questions relating to delay as the cause of death, and sought answer only to the second in the following context:

(1) “Q Doctor, let me ask you this: Assume certain facts. Would you assume that Mrs. James became ill first somewhere around 8:00 or even as late as 9:00 p. m. on July 18, 1962, and that within thirty minutes, or around 9:30 p. m. of that same day, that she was vomiting and having bowel movements, and that she was then weak, and that she was then asking for a physician, and assume further that she did not have any medical care until — other than the giving of some Kaopectate to her on one or two occasions during the about two hour or two and a half hour period up until approximately 11:00 o’clock, would you have an opinion as to whether or not her failure to receive medical or hospital care within that period of time contributed to the shock or dehydration which you diagnosed her suffering from? * * *

“MR. FIELD: Preliminary to objection. I beg your pardon, Your Honor; preliminary to objection. Would your answer have to be based in part, to that question, on speculation and guesswork? THE WITNESS: Well, it certainly would to a degree. MR. FIELD: Yes, sir, I thought so. I object to the question for that reason, Your Honor.”

(2) “Q (Mr. Blumer) But let me ask you this, Doctor: I am talking about whether or not, in your opinion, based upon those facts, assuming that those are the facts, whether or not in your opinion this lady, as you saw her, the failure to have medical care from 9:30 until 11:00 o’clock could have contributed to her shock and dehydration which you found her suffering from after midnight on the same day? A Well, I am sure that’s true. Q Well, so your answer would — A If I understand you correctly. I mean that yes, it was detrimental that she didn’t have medical care sooner, because look at the end' result.”

Immediate cross-examination produced the following testimony:

“Q (Mr. Field) Right on that point, Doctor, isn’t it a fact that all things considered, that as Mr. Blumer has given to you, and taking the very assumptions he asked you to assume, that she became suddenly ill about 8:30 or perhaps as late as 9:00 o’clock, and that over that span of time, you saw her three hours later, just about 12:00 — A Uh-huh. Q (continuing) —you couldn’t, as a physician and an internist, have any medical opinion that had she been brought in an hour earlier, or even two hours earlier, or even when she first had her severe seizure at 9:00, as he asked you to assume, the vomiting and bowel movements, you can’t have any — you couldn’t have a medical opinion that you could have saved her life, even if she had been brought in three hours earlier, could you? A I cannot say she would have lived if she was brought in earlier, no. Q So though you like to think that you could have reduced the shock or somewhat held the shock down, and like to think that you could have saved her life — A That’s right. Q (continuing) — had she been brought in earlier — A That’s right. Q (continuing) —you can’t say on the facts, on the basis of reliable medical opinion, that even if she had been brought in after 9:00 o’clock, when she first had this violent seizure and the vomiting he asked you to assume, and involuntary bowel movement, you can’t say that you would have been able to have saved her life, even as a probability, can you? A Nor I can’t say that. Q And you would simply have to speculate on that, wouldn’t you? A That’s right.

“Q So if she was delayed in getting medical attention by an hour or two hours, you could not have any medical opinion that that delay caused her death or contributed to cause it, could you ? A Well, I think on the surface of it, a delay like that is not good. Q Certainly. A I think this is apparent. Q You would like to think you could have saved her ? A That’s right, but I can’t say this without a doubt. Q You can’t say any delay — A No, I can’t say.

“Q You can’t say that any delay actually cause it or contributed to cause her death, can you? A Well, as I say, it is certainly reasonable, I think, to assume that as you said, if we had gotten her sooner — Q You like to think — A (continuing) — I like to think we might have been able to do it, but this doesn’t really prove or establish that if we had seen her a half hour after she became sick that she would be here now or would have survived. Q And any belief or statement that you might have been able to save her would have to be based on some speculation and guesswork, wouldn’t it? A That’s right. * * * Q Now, what I am leading up to is this, Doctor, this thing apparently went so very fast. The onset, as I think the language doctors use, the onset was sudden, wouldn’t you say that was true? A Uh-huh, that’s right. Q Then can you say, without resorting to some speculation and guesswork, can you say that this type of undetermined etiology, sudden onset, went so very fast, can you say without speculating or guesswork that had she been brought in sooner after her seizure that you would have saved her life or could have — even could have saved her life? A No, you can’t say that any more than you can say to a patient, T will guarantee to you a perfect result if you have this surgery.’ You can’t do those kinds of things in medicine. Q And you couldn’t even say that you could have saved her life, you can’t even go so far as, except by speculation, some speculation and guesswork, to say that you even could have saved her life, isn’t that right? A I think that’s right. I think the assumption is usually made that if we are ill, that the sooner we get help, the better our chances are. I think this is — Q Right. A (continuing) —something that is logical assumption.

“Q Right, but when you get down to assessing — when you get down to assessing the delay in getting help on the facts of this case, the sudden seizure, you can’t give any medical opinion or have any opinion, unless it is based in part on speculation and guesswork, that delay after her seizure caused or contributed to cause her death, can you? A I cannot say that she would have been alive had I seen her earlier. * * *

“Q And further, it has been testified to here that Dr. Flanders arrived at 11:00 o’clock at the plant, and that instead of calling the ambulance immediately, that Dr. Flanders instead talked with her, attempted to talk with her, asked her what she had eaten, tried to get her to take some Kaopectate, observed her, and within a matter of a half an hour, having had her under observation, called the ambulance and had an ambulance come and take her to the hospital. Now you are not saying that that half hour delay at that time contributed to cause her death, as a medical opinion, are you? A I really can’t answer that. Q Of course not. You couldn’t have an opinion on it, could you, without speculation? A No, I really couldn’t.”

Redirect and recross-examination produced the following further testimony respecting cause of death:

“Q (Mr. Blumer) Well, Doctor, with regard to this question of immediate or near immediate care for a person in distress or ill, is it your testimony that this is or is not important or significant in their care and possible recovery, the immediate or near immediate care for someone in distress or sickness? A Well, I think it is an important thing, and I think we can say in retrospect it was very important, because the patient did not live. * * *

“Q (Mr. Field): Doctor, just this last question. Does this fairly sum it up, that in this case, on the facts of this case, that from a medical and scientific view, it is really impossible to determine whether or not, had you been able to see her earlier, you could or might have been able to save her life, it is impossible to so determine, because there are too many factors that are not known that would have to enter into such a decision, if you were to be scientific and have a medical opinion on it, isn’t that correct? A Yes. As I said, she was undoubtedly very gravely ill. Q Yes, sir. A If she wasn’t, she would not have succumbed, I am sure of this, and yet I cannot say if I had seen her three hours earlier she would have survived, because it is obvious she was very, very ill. Q Yes, sir. A But as you had said, we like to think that if we see them earlier, we can help them. Q Certainly. A But that doesn’t prove that she would still be alive or that we could have helped her. The end result might have been the same.

“Q And so the reverse side, then, any delay in getting to her, getting her to you, after 9:00 o’clock, after the seizures came on, any delay, you cannot say with any definiteness or with the stature of a medical opinion, that that directly caused or directly contributed to cause her death, can you? A I cannot say that. I think any delay, when someone is this ill — Q It would help to get them there ? A It would help to get them there, certainly.

“Q And this is unlike the case, for example, where somebody had had their jugular vein severed, or an artery severed, a main artery, and you could get them right away, you could then say, and have a medical opinion based on reasonable medical probability, that had you got them there when the artery was severed, and clamped it, that you could have saved her life, isn’t that right? A Yes, it would be different from that. Q And there is a great distinction between that and this type of case, isn’t there? A Yes, sir.

“Q And it is for that reason that you find it impossible to have any scientific and medical opinion on that subject, isn’t that right? A It is impossible for me to prove that caused her death.”

The autopsy report showed as final diagnosis : “Primary: Acute gastroenterocolitis. Generalized visceral congestion. Pulmonary edema.”

Plaintiff’s theory of recovery against these defendants was that they were negligent under the law of Kansas in knowing of the illness of their employee, who had become ill while at work and unable to obtain medical assistance for herself, and thereafter failing to obtain prompt medical attention for such employee. Haggard v. Lowden, 156 Kan. 522, 134 P.2d 676, 679 [6]. See also Hunicke v. Meramec Quarry Co., 262 Mo. 560, 172 S.W. 43, L.R.A.1915C, 789; 35 Am.Jur., Master and Servant, § 109; 64 A.L.R.2d 1146. And the sole question here is whether plaintiff produced any substantial evidence to prove that the death of plaintiff’s decedent was caused by delayed medical attention.

Appellant contends, of course, that there is substantial evidence that defendants’ actions were the proximate cause of the death of Virginia June James and, in presenting his case on causation, he suggests and follows a classification of the cases dealing with the necessity for expert testimony.

His first classification is of those cases in which no expert is necessary on the issue of causation because common knowledge relates cause and effect as in the- case of stomach pain and illness following immediately upon the consumption of soup containing broken glass. Bell v. S. S. Kresge Co., Mo.App., 129 S.W.2d 932, 935 [4-6]. Next is his grouping of those cases where expert testimony of scientific possibility combined with other evidence fulfills the requirement of substantial evidence as where there are facts which tend to show that an accident caused a certain condition and the expert then supports that evidence by testifying that the accident might, could, or would produce the condition in issue. See Ketcham v. Thomas, Mo., 283 S.W.2d 642, 649 [9, 10], where a uterine bleeding condition worsened following the impact of collision. Finally, he recognizes the cases in which no lay person would be expected to know the cause, such as where injury is claimed to be the cause of a coronary occlusion. In this classification an expert is necessary and he must' be reasonably certain or no substantial evidence is offered on the issue of causation. Schaefer v. Rechter, Mo., 290 S.W.2d 118, 123 [2, 3]; Brown v. Metropolitan Life Ins. Co., 236 Mo.App. 315, 151 S.W.2d 499, 503 [6].

Appellant reminds that causal connection need not be shown by direct and positive testimony, as it is sufficient if it be made to appear by reasonable and legitimate inferences from facts and circumstances shown in the evidence, Brimer v. Davis, 211 Mo.App. 47, 245 S.W. 404, 412[13]; Dyer v. W. M. Sutherland Building & Contracting Co., Mo.App., 258 S.W. 48, 50[3]; Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 161[3]; that plaintiff’s evidence need not exclude all causes for which defendant would not be liable in order to recover, as it is sufficient if there is substantial evidence from which the jury may find that negligence was the proximate cause, anything beyond that being a matter of defense, Swanson v. God-win, Mo., 327 S.W.2d 903, 910[5]; that causal connection must be proved, but direct proof of the connection is not required, it being sufficient that facts proved are of such nature and so connected and related that the conclusion of causal connection may be fairly inferred, Watt v. St. Louis Public Service Co., Mo., 354 S.W.2d 889, 891 [2]; Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 495 [10, 11].

Appellant says that the facts and circumstances of this case are such that no medical opinion is necessary on the issue of proximate cause because common knowledge would permit the jury to find that defendants’ actions caused the death of plaintiff’s decedent. He argues that by common sense reasonable persons could know that food poisoning does not usually cause death; that a person in Mrs. James’s condition is in need of, and likely to be helped by, immediate medical assistance; that after three hours’ care she showed improvement; and that it is therefore not necessary to have a physician testify that delayed medical care caused the death. Cases cited by appellant in support of this contention are not in point because they involved situations in which the injury or illness and the consequences were obvious. For example, in Wyckoff v. Davis, Mo., 297 S.W.2d 490, deceased fell from a horse and was rendered unconscious. While being rushed to a hospital, the vehicle in which he was riding was struck by defendant causing it to turn over several times. He was dead a few minutes later and a fractured skull with brain tissue showing and an evulsed eye were obvious conditions not present prior to the collision. Expert testimony was obviously not necessary on the issue of causation. In Fellows v. Farmer, Mo.App., 379 S.W.2d 842, deceased was found dead in defendant’s automobile which had hurtled through space and crashed into a concrete wall. He suffered a crushed head and it was obviously unnecessary to have an expert say that the injury was sustained in the accident and that it caused the death. In Hunicke v. Meramec Quarry Co., supra, deceased was run over by a railroad car. His leg was “frightfully crushed” below the hip and “great quantities of blood were freely flowing.” The employer delayed some four to five hours in securing medical care and the employee died from obvious delay in stopping loss of blood.

In contrast, this case, as Dr. Holt stated, does not involve an obvious causal connection, certainly not as between delayed medical care and death. No anatomical cause of death was shown and no cause was readily apparent. Under our authorities, then, it would be improper to permit the jury to infer death due to delayed medical care without the aid of expert testimony, because no layman could know or have any reasonable basis for such inference. Bertram v. Wunning, Mo.App., 385 S.W.2d 803, 806-807[2, 3]; Gulley v. Spinnichia, Mo.App., 341 S.W.2d 301, 305[4]; Kimmie v. Terminal R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561, 564 [3-5]; Moore v. Glasgow, Mo.App., 366 S.W.2d 475, 483 [9, 10]; Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312, 316[8]; Cox v. Missouri-Kansas-Texas R. Co., 335 Mo. 1226, 76 S.W.2d 411, 415-416[4, 5].

Since proximate cause in this case cannot be shown without the aid of medical testimony, we turn to appellant’s contentions that the medical testimony alone amounts to substantial evidence that delayed care caused the death, and that the medical testimony, when assisted by other evidence, amounts to substantial evidence on the issue of causation.

Appellant bases the first of these contentions on an analysis of the medical evidence to the effect “that Mrs. James suffered from acute food poisoning, complicated by shock and dehydration, and that she died because of circulatory failure caused by shock”; and he refers to the opinion of Dr. Holt that shock and dehydration caused or contributed to cause Mrs. James’s death and the doctor’s response to the only answered hypothetical question that “it was detrimental that she didn’t have medical care sooner.”

Appellant supports this contention with Pijut v. St. Louis Public Service Co., Mo., 330 S.W.2d 747, where there was testimony that the nephritis plaintiff had in his body for years could have been caused to flare up as a result of the accident, and that the particular flare-up was caused by the accident. The case is not in point on appellant’s problem here, however, because there causation was present when “Plaintiff showed with reasonable certainty that the death was caused by an acute attack of nephritis precipitated and caused by traumatic shock. Dr. Klein positively so testified four times.” 330 S.W.2d l. c. 751 [1]. Appellant argues that the “inconsistencies and some indefiniteness of the testimony of Dr. Holt” was not complete erosion or impeachment and that it was substantial evidence upon which to submit the case. The cases cited in support of this argument are also not in point on his problem because the medical testimony in each was obviously sufficient to take the issue of causation to the jury. In Green v. Terminal R. Ass’n of St. Louis, Mo.App., 135 S.W.2d 652, Dr. Hurd stated in his opinion the trauma sustained in the collision was the producing or procuring cause of plaintiff’s diabetic condition and the cross-examination was not a repudiation of the witness’s opinion. In Walker v. St. Louis Public Service Co., 362 Mo. 648, 243 S.W.2d 92, 96[2], “The statement of Dr. Stubbs that T feel that it (the accident) has probably speeded up the course of her development of congestive heart failure’ in connection with his whole testimony, amounted to an expert opinion that the aggravation did hasten the development of congestive heart failure.” And in Breland v. Gulf, Mobile & Ohio R. Co., Mo., 325 S.W.2d 9, despite weaknesses, inconsistencies and incongruities in plaintiff’s medical evidence which were for the jury to weigh, it was obvious that when defendant’s engine derailed plaintiff was caused to sustain trauma violent enough to render him unconscious, fracture a vertebra, and develop a hematoma, all of which resulted in pain, loss of time, hospitalization, loss of weight and strength.

In this case it is apparent from the facts previously detailed that plaintiff failed to produce substantial medical evidence that delayed medical care caused or contributed to cause the death. Dr. Holt and the autopsy were unable to make a final diagnosis of cause of death and no anatomical cause was shown. He had only an impression, which he admitted would not reach the dignity of an opinion, that the deceased had acute food poisoning. He found the patient suffering from shock and dehydration which contributed to or caused the death, but only by indulging in guesswork and speculation could he have an opinion that failure to have medical care for “about (a) two hour or two and a half hour period up until approximately 11:00 o’clock, contributed to the shock and dehydration.” In similar vein, he acknowledged that the mentioned delay “could have contributed to her shock and dehydration” but qualified his acknowledgment by saying “it was detrimental that she didn’t have medical care sooner, because look at the end result.” Dr. Holt would not say that her life could have been saved even as a probability had he seen her earlier, saying only that he would “like to think” that he could have reduced the shock or saved her life if he had treated her sooner. The doctor also acknowledged that the sudden onset of the patient’s illness rendered him unable to have an opinion without guesswork and speculation that delay after the seizure caused or contributed to cause the death. Thus, it appears that the most Dr. Holt’s testimony aids plaintiff is that the shock and dehydration contributed to or caused the death of his wife, but the doctor was unable to relate such shock and dehydration to any delay in securing medical care without resorting to guesswork and speculation. Even though he acknowledged that delayed care could have contributed to ■ shock and dehydration, Dr. Holt denied even a probability of saving the patient’s life had he seen her sooner. So it is that this case is within the ambit of those in which possibilities secured from testimony to the effect that a certain condition might, could, or would be caused by the negligence charged is not of itself substantial evidence upon which to submit the issue of causation to the jury. That is to say that absent substantial evidence from Dr. Holt that delayed medical care did cause the death of Mrs. James, his opinion that delayed medical care could have contributed to her shock and dehydration or that he would like to think he could have saved her, standing alone, did not make a submissible case because the jury could solve the issue of causation on such testimony only by guesswork. Kimmie v. Terminal Ry. Ass’n of St. Louis, supra, 66 S.W.2d, l. c. 565 [6-11]; Stewart v. Martin, 353 Mo. 1, 181 S.W.2d 657, 658[3,4]; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 646[2,3]; Hunt v. Armour & Co., supra, 136 S.W.2d l. c. 316J8]; Fritz v. Manufacturers R. Co., Mo.App., 124 S.W.2d 603, 607[6]; Baker v. Kansas City Terminal Ry. Co., Mo., 250 S.W.2d 999, 1006-1007[5]; Walker v. St. Louis Public Service Co., supra, 243 S.W.2d l. c. 97-98 [3-5]; Bertram v. Wunning, supra, 385 S.W.2d l. c. 806-807[2-6]; Moore v. Glasgow, supra, 366 S.W.2d l. c. 483 [9,10]. See also Raftery v. Kansas City Gas Co., 237 Mo.App. 427, 169 S.W.2d 105, 109[3,4]; Kinealy v. Southwestern Bell Telephone Co., Mo., 368 S.W.2d 400, 404[4],

This leaves remaining appellant’s contention that the medical evidence, when assisted by other evidence in the case, amounts to substantial evidence on the issue of causation.

In the hypothetical question put to Dr. Holt, plaintiff selected the period 9:30 until 11 o’clock as the interval of the superintendent’s “failure to have medical care” for Mrs. James. From the testimony previously detailed, it appears that defendant Staley called Dr. Flanders no later than 10 o’clock, and plaintiff’s case was submitted on the hypothesis that “defendant Staley failed or refused to use reasonable care to seek and obtain medical or hospital care on behalf of Virginia June James within a reasonable time following his knowledge, if any, of her immediate need for medical or hospital care.” The lay witnesses described the circumstances giving rise to Staley’s knowledge. Witness Roberts left Mrs. James near the end of the “break” and joined other friends in the cafeteria. She had no concern at that time. Mrs. James had said she would be all right. Mr. Lanning saw Mrs. James around 9 o’clock, had Staley called, and Staley arrived in “30 to 45 minutes.” Staley called Dr. Flanders by 10 o’clock. Miriam Good saw Mrs. James at the break as she finished vomiting and she was pale looking. Patricia Good saw Mrs. James at “9:30 on our break.” She was vomiting into the toilet. The witness thought Mrs. James had the flu and she was not apprehensive about the situation when she left at the end of the break at 9:45 o’clock. Myra Hazen saw Mrs. James at the 9:30 break when she appeared to be quite ill. Clara Pickett did not think Mrs. James looked “too bad” when she saw her at the break. Defendant Staley called Dr. Virgil Flanders around 9:45 to 9:50 and Dr. Horace Flanders called back about 10 o’clock. He directed Staley to give the patient more Kao-pectate and said he would come right over to the plant. Mrs. James was not ill before eating and became ill only after eating a sandwich and potato salad around 7 o’clock.

The burden was on plaintiff to prove the cause of death and that the cause was the negligence charged and the burden is not met if resort must be made to speculation, Biddlecom v. Nelson Grain Co., Mo., 178 S.W. 750, 756[5]; and the test on causal connection is whether the facts show that absent the charged negligence the injury would not have been sustained. Housden v. E. I. Du Pont De Nemours & Co., Mo., 321 S.W.2d 430, 433[3]; Wood v. St. Louis Public Service Co., 362 Mo. 1103, 246 S.W.2d 807, 811 [4]; Taylor v. Hitt, supra. We have demonstrated that the medical testimony, standing alone and at its most, is that delay could have caused the patient’s shock and dehydration and that the doctor would like to think he could have saved her had he seen her sooner. This was not substantial evidence of causation, and the lay testimony adds nothing substantial to assist plaintiff on the issue of negligence charged, i. e., delay in securing medical assistance from the onset of defendants’ knowledge. There is a wealth of evidence to the effect that Mrs. James was sick after eating a ham and cheese sandwich and potato salad, and that sometime around 9:30 became very ill, but there is no substantial evidence that any delay of defendants caused the dehydration and shock and ultimate death. Dr. Holt, when permitted to consider all the circumstances, could not so say without guessing, and the lay testimony does not supply the missing proof.

Appellant has cited Ketcham v. Thomas, supra, and Walker v. St. Louis Public Service Co., supra, which have been previously distinguished from the situation here. In addition, he cites York v. Daniels, 241 Mo.App. 809, 259 S.W.2d 109, which is not in point because both obvious causation and medical testimony were present. There, a lady without illness or injury was physically manipulated by a chiropractor and suffered immediate pain, convulsions, and illness. In addition, there was medical testimony that the jerk of deceased’s head and neck could have caused the rupture of her spinal cord and her consequent death. In Wills v. Berberich’s Delivery Co., 345 Mo. 616, 134 S.W.2d 125, plaintiff had substantial medical evidence on the cause of injury, and it was simply disputed by defendant’s medical experts. And in Lewkowitz v. United Railways Co. of St. Louis, 178 Mo.App. 629, 161 S.W. 588, the doctor described the patient’s symptoms and his opinion was that the patient suffered from nephritis resulting from a damaged kidney. Such was substantial evidence even though, upon cross-examination, he admitted that an operation to expose the kidney would be needed in order to be absolutely positive.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

HOLMAN, P. J., and HENLEY and DONNELLY, JJ., concur.

HYDE, J., not participating.

      . V. D. Elder and Geraldine Elder, doing business as Rainbow Catering Company, were also sued in this action. They were charged with failure to warn deceased that said foodstuffs were dangerous to human consumption, and during the trial they settled with plaintiff for $5,000.


author: STOCKARD, Commissioner.

text:
    C. Kenneth THIES, Appellant, v. ST. LOUIS COUNTY, Missouri, a Municipal Corporation, Respondent.
    No. 51387.
    Supreme Court of Missouri, Division No. 2.
    May 9, 1966.

      A. H. Hamel, Clayton, for appellant.
    Donald J. Stohr, St. Louis County Counselor, Joseph B. Moore, Deputy County Counselor, John J. Collins, Asst. County Counselor, Clayton, for respondent.
   STOCKARD, Commissioner.

In this suit in equity by C. Kenneth Thies against St. Louis County for rescission of a deed of conveyance of real estate, the judgment was for defendant and plaintiff has appealed.

In 1950 plaintiff acquired approximately ten acres of unimproved land in St. Louis County, and immediately upon acquisition he transferred three and one-half acres to a person named Ball. He subsequently conveyed two tracts to persons named Diener and Israel, leaving plaintiff a tract consisting of .968 acre. In 1960 it became apparent that plaintiff’s land would be taken for the construction of what is known as the Inner Belt Highway. In July of that year plaintiff wrote to Mr. Ray Julius, who was handling the acquisition of land for the Inner Belt Highway, and requested that he confirm that plaintiff’s land would be taken. Plaintiff stated that he intended to reinvest the proceeds received for his land in other land in St. Louis County, but that “in order to hold on to the deal I will not be enabled to wait indefinitely to accommodate the normal delays of appraisal, negotiations, etc. with regard to the property to be taken for highway purposes.” Following this there were negotiations between plaintiff and Mr. Julius. In the early part of 1961 appraisals of plaintiff’s property were made by two persons employed by St. Louis County. The “comparative approach” method of valuation was used, and each appraiser determined the value to be 500 a square foot. The total value was stated by one appraiser to be $20,500 and by the other to be $20,475, the difference apparently resulting from a variance in the estimated number of square feet. Appraisals also were made of the Diener and Israel tracts. The Diener tract adjoined that of plaintiff but was approximately one half as large, and like plaintiff’s tract it was being taken in its entirety. Each appraiser found that it had a value of 500 a square foot, but again the total value found by each appraiser varied a few dollars. The report of only one appraiser as to the Israel property is shown. That property consisted of 3.5 acres and contained some improvements in the form of buildings and fencing. Slightly more than one acre was to be taken for the highway, but apparently the buildings were not to be disturbed. The land to be taken was valued at 600 a square foot. The total appraised value of $29,728 for the property taken included $691 for fencing. Whether or not plaintiff knew the contents of the reports of the appraisers for the Diener and Israel properties is not shown, but Mr. Julius made an offer to plaintiff to purchase his property for $21,500, less accrued taxes in the amount of $19. This offer was based on 105% of the average of the two appraisals. As subsequently noted, plaintiff accepted this offer. There was no appraisal of the Ball property until May 20, 1962.

The substance of plaintiffs testimony is that he did not desire to enter into litigation with St. Louis County, but that he wanted to be certain that the offer made to him was the highest that would be made to either Ball, Israel or Diener, and that they would receive no more for their land except as the result of condemnation proceedings. Plaintiff testified that Mr. Julius said, “You have my word on it. These men will not * * * profit by being holdouts. I am offering you the maximum that is going to be paid, short of condemnation.” Plaintiff further stated that he told Mr. Julius that he “would accept the sum of $21,492 for the .968 acres on the strict provision that this was going to be the top paid any one of the four of us, namely, Thies, Israel, Diener, and Ball; that if, on the other hand, these other gentlemen were going to profit and receive anything in excess of 50⅜⅛ a square foot merely by dragging their feet and holding out, then I wanted no part of the transaction.”

On March 29, 1961, plaintiff executed a general warranty deed in conventional form conveying the .968 acre to St. Louis County for the recited consideration of “one dollar * * * and other valuable considerations,” but for which he received $21,492. This deed contained no reference to what plaintiff contends were the promises of Mr. Julius that Ball, Israel and Diener would be offered no more than 50‡ a square foot. Plaintiff testified that in 1963 he learned that subsequent to March 29, 1961, St. Louis County had offered to purchase the land of Ball, Israel and Diener at prices in excess of the basis of 50‡ a square foot. It was developed at the trial that the Diener property was acquired by St. Louis County on June 27, 1963, for $18,969. This apparently was a negotiated price and amounted to approximately 92‡ per square foot. Condemnation proceedings were brought on February 13, 1964 to acquire the Ball and Israel properties. At the time of trial of this suit the condemnation proceedings were still pending as to the Ball property, but in 1963 St. Louis County made an offer to purchase which amounted to 72‡ per square foot. The precise status of the Israel property at time of trial is not clear, but the County either offered or paid an amount equal to $1.07 per square foot.

Mr. Julius testified that after the 1961 appraisals were made of the Diener and Israel properties he made offers to purchase the property on the basis of 105% of the average of the appraised values, and that subsequently a similar offer was made to purchase the Ball property. The report of only one appraiser is shown for the Ball property which was made on May 20, 1962, and in it the value was stated to be 50‡ a square foot. All these offers were turned down. When asked if he and plaintiff in their negotiations “were dealing with the figures that would stand absent condemnation,” Mr. Julius replied, “At that time, yes.” He further stated that in late 1962 or early 1963, subsequent to the purchase of plaintiff’s property, it was discovered that there was an easement affording access from a road to the Ball property, and when told by his appraisers that this could affect the value of the land, he asked for a new appraisal. He further testified that in his opinion there had been a recent advancement of land values in the area resulting from the construction of a nearby shopping area and “recent land market activity,” and because of this he felt that “in order to be fair to everyone concerned” there should also be new appraisals made of the Israel and Diener properties. The new appraisals resulted in a substantial increase in the appraised values. For example, according to one appraiser, the value of the Israel property had increased from $29,728 to $61,000; the value of the Ball property had increased from $97,250 to $194,500; and the value of the Diener property had increased from $10,400 to $20,800.

The trial court entered judgment “against plaintiff and in favor of the defendant.” No findings of fact and conclusions of law were requested, and none were made.

Plaintiff’s first point is that the trial court “failed to enforce the collateral commitment which was part of the consideration due plaintiff-appellant for the sale of appellant’s .968 acre conveyed to County-respondent.” In sub-points he asserts that he “was entitled not only to the cash consideration agreed upon * * * but also entitled to the fulfillment of a promise made as contained in the collateral oral agreement,” and that the county is not entitled to take and retain his property “and then repudiate the oral commitment” made by it upon which the transaction was built and which induced him to enter therein. By his petition plaintiff does not seek “to enforce the collateral commitment” or to obtain the “fulfillment” of an oral promise. He seeks to have rescinded the deed executed by him conveying the land to the county. We further note that the land in question was conveyed to the county to be used for the construction thereon of a public highway. From the record we cannot determine whether the highway has been or is in the process of being built, but more than five years have elapsed since the conveyance. Plaintiff has offered to return the $21,492, but we consider it a serious question, regardless of the merits of his claim, whether a court of equity should exercise its discretion to restore to plaintiff title to a portion of a public highway. Also what plaintiff is in fact seeking is not to have the parties restored permanently to their original positions, but he seeks to obtain more money for his land. Apparently his theory is that if title is restored to him he can then negotiate for a higher price or be awarded more money by a jury in a condemnation proceeding. Since the ultimate objective is to obtain more money, such relief to which plaintiff is entitled, if any, is not ordinarily a matter for equitable relief. The remedy is at law. However, neither of these contentions is advanced by the county in its brief to this court. We shall, therefore, consider the specific points presented by plaintiff.

Plaintiff’s position in his point is that aside from the agreement that the price to be paid to him for his land was to be $21,-492, there was a collateral oral agreement between him and Mr. Julius acting by and on behalf of St. Louis County that an offer by St. Louis County to purchase the Diener, Israel and Ball tracts on a basis of more than 50⅜ a square foot would not be made. Plaintiff apparently takes the position that this was a separate oral agreement apart from the agreement between the parties expressed in the deed in order to avoid the application of the general rule that “Prior and contemporaneous negotiations and oral understandings of the contracting parties are said to merge into their written instrument and, with certain exceptions, that instrument cannot be varied, and a new and different contract substituted therefor, by parol testimony.” Fisher v. Miceli, Mo., 291 S.W.2d 845, 848. See also Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817; Giraldin Bros. Real Estate Company v. Stiansen, Mo.App., 315 S.W.2d 636. Plaintiff cites and relies principally upon Rackemann v. Riverbank Imp. Co., 167 Mass. 1, 44 N.E. 990 and Caveny v. Curtis, 257 Pa. 575, 101 A. 853. These cases, except for a factor subsequently mentioned lend support to plaintiff’s theory. He also cites Scott v. Asbury, Mo.App., 198 S.W. 1131; Aull Savings Bank v. Aull’s Administrator, 80 Mo. 199; Corn v. McDowell, Mo.App., 185 S.W. 235; Hart v. Riedel, Mo.App., 51 S.W.2d 891; Owsley v. Jackson, 163 Mo.App. 11, 144 S.W. 154; and Wilson v. Wilson, 115 Mo.App. 641, 92 S.W. 145. It may be said that except for the same factor subsequently mentioned, these cases by analogy lend some support to plaintiff’s theory. However, we need not examine their rational nor set forth their basic rulings. It is sufficient to say that none of them pertains to a comparable factual situation where an alleged collateral oral agreement was entered into with a county or some other governmental subdivision referred to in Section 432.070, Mo.Rev. Stat.1959, V.A.M.S. That statute is as follows: “No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or he expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract ; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.”

In this case the alleged collateral agreement, the breach of which plaintiff relies as a basis for rescinding the deed, is admitted to have been oral and never reduced to writing. The terms of this statute are expressly made applicable to counties, and the requirement that the terms of contracts therein referred to be in writing has consistently been held to be mandatory and not merely directory. Donovan v. Kansas City, Missouri, 352 Mo. 430, 175 S.W.2d 874, 179 S.W.2d 108; County of St. Francois v. Brookshire, Mo., 302 S.W.2d 1, 4. Also, it has expressly been held that an oral contract “in violation of this statutory provision is void ab initio and cannot be rendered valid after the services are performed or work done.” County of St. Francois v. Brookshire, supra; Fleshner v. Kansas City, Missouri, 348 Mo. 978, 156 S.W.2d 706. All persons are charged with knowledge of the powers of counties, the authority of their officers and agents, and the manner prescribed by statute for the exercise thereof. For analogy see Fulton v. City of Lockwood, Mo., 269 S.W.2d 1; and Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, 179 S.W.2d 108, appeal dismissed 322 U.S. 707, 64 S.Ct. 1049, 88 L.Ed. 1551. “Since municipal corporations [and counties] represent the public, they are to be protected against the unauthorized acts of their officers, and the courts unhesitatingly should enforce compliance with all mandatory provisions of the statutes designed to protect municipalities [and counties] and their inhabitants.” Grauf v. City of Salem, Mo.App., 283 S.W.2d 14, 17; Bride v. City of Slater, Mo., 263 S.W.2d 22, 26.

While plaintiff does not seek to enforce this void contract or to obtain damages for its breach, he does seek to establish the existence of the collateral oral agreement, and then establish a breach of it by St. Louis County to provide the basis for rescinding the deed. However, the alleged oral agreement is void for all purposes, and there can be no breach of a void agreement. If we assume that it is established by the evidence (but we do not so hold) that plaintiff and Mr. Julius entered into a collateral oral agreement as plaintiff contends, that agreement was void ab initio, and being so it cannot now be relied on by plaintiff for any purpose.

Plaintiff asserts in his reply brief that he will agree that “the contractual relations between the parties” are void, and that he wants “all of the contract” declared void. However, in making this assertion he impliedly refutes his premise in his principal brief, that is, that the oral understanding concerning the offers to be made to Ball, Israel and Diener constituted a “collateral commitment” or a “collateral oral agreement.” If we consider, as plaintiff urges in his reply brief, that there was but one agreement or contract, then the general rule, previously mentioned, becomes applicable, and all contemporaneous negotiations and understandings of the contracting parties are considered to merge into the written instrument. See the cases cited supra.

Plaintiff next makes in his reply brief what he calls an “in passing” observation that the County of St. Louis ignored Civil Rule 55.10, V.A.M.R., in its “belated reliance on the ‘avoidance and affirmative defense’ allegedly afforded under Section 432.070” because there was no mention of it in its pleadings or its testimony. We doubt that it may fairly be said that plaintiff pleaded the existence of and then a breach of a collateral oral agreement as the basis for rescinding the deed. At least there were no specific allegations to that effect. We do not know what theory was argued to the trial court. Neither do we know the basis of its judgment. In plaintiff’s motion for new trial there is no reference to a collateral “commitment” or “oral agreement.” If plaintiff is entitled to rely on such commitment or agreement in his point to this court, the county is entitled to call the attention of the court to the statute to sustain the judgment entered by the trial court.

Plaintiff’s second and remaining point is that “the evidence disclosed that all of the negotiations of the parties were pursued under a mutual mistake of fact in that a cross-easement to [plaintiff] was ignored; while [the county] simultaneously insists the concomitant cross-easement justified reappraisal of the Ball tract and a 100% increase as to valuation.” In his brief plaintiff states that “It should be recognized that this ‘theme’ was an injection solely motivated by the county’s excuse that a mistake of fact had warranted the reappraisals of the neighboring parcels by reason of a failure to consider a cross-easement to the Ball tract.”

Plaintiff testified that “way back there [in “the early fifties”] when we parceled off the Israel tract Mr. Ball said he would like to retain a little right-of-way out to Gay Avenue [not an opened street] in the event he would ever want to use it. * * * I said to Ball, ‘Well, if you want a little easement-way out through this property * * * then I want an easement-way out clear across your tract in the event they ever build the Rock Island bypass which has been talked about for 20 years, since 1945 * * *.’ So we made a mutual agreement that he could have a way out to Gay Avenue over my parcel, and I could have a way out over the Rock Island bypass, if it was ever built, over his parcel. And nothing was ever done about either one.”

At the time of the negotiations with Mr. Julius, plaintiff had personal knowledge of the existence of the easement appurtenant to his land. Yet, with that knowledge he testified that he considered the price offered to him for the purchase of his land to have been “a fair price if he [Mr. Julius] kept his promise” not to offer other owners a higher price. However, this promise could have had no bearing on the fairness of the price offered to plaintiff.

The cancellation or rescission of a deed is the exercise of the most extraordinary power of a court of equity, and this power ought not to be exercised except when clearly justified from a consideration of all the evidence in the case, Walton v. Van Camp, Mo., 283 S.W.2d 493, 500, and the burden of showing the basis therefor rests upon the person seeking the relief. Edinger v. Kratzer, Mo., 175 S.W.2d 807. A mutual mistake to warrant the cancellation or rescission of a deed must relate to the existence or non-existence of a fact, past or present, material to the transaction, and not as to a future contingency. The mistake must be as to a matter of fact, not as to a matter resting in mere conjecture or belief, and it must appear that knowledge of the fact would have prevented the execution of the deed. See 13 Am.Jur.2d Cancellation of Instruments § 31; 26 C.J.S. Deeds § 55. Compare Jennings v. Metropolitan Life Ins. Co., Mo.App., 166 S.W.2d 339, 344. Plaintiff does not deny that the price offered him at the time was a fair price. He personally knew of the easement appurtenant to his land. He also knew, or should have known, that it was not mentioned specifically in the report of either appraiser. In connection with his reliance on the reports of the appraisers, he testified that “There is no yardstick to determine what is fair. We know that property will either bring what somebody is willing to pay or what some court is willing to give and that is the only yardstick you’ve got, and Mr. Julius knows and I do, and you know that appraisals frequently vary 400 to 500 per cent.” From these facts and circumstances we cannot find a mutual mistake of fact, as distinguished from a difference of opinion or belief as to the value of the property at the time of negotiations and two years later when the opinions are affected by hindsight. Any mistake of the parties pertained only to value, and that rested in conjecture and belief. The circumstances of this case do not warrant the exercise of the extraordinary power of a court of equity to rescind the deed, the terms of which were freely negotiated with no fraud or concealment by adults experienced in the business at hand, and who were charged with knowledge of the limitations on the powers of a county and its agents.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.