author: BLAIR, Judge.

text:
    OPIE BRUSH COMPANY, a corporation, Respondent, v. Hugh F. BLAND, Appellant.
    No. 24614.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.

      Guy A. Magruder, Jr., Terrell, Van Os-dol & Magruder, Kansas City, for appellant.
    Don M. Jackson, Jackson, Wade & Barker, Kansas City, for respondent.
   BLAIR, Judge.

This is an appeal from a decree enjoining the appellant, Hugh F. Bland, a former first vice-president, sales manager and director of the respondent, Opie Brush Company, a corporation, from competing with it. The record does not affirmatively disclose that the amount in dispute, independent of all contingencies, is in excess of $15,000.00. We have jurisdiction. Sec. 477.040, V.A.M.S.; Jackson County Public Water Supply Dist. No. 1 v. Ong Aircraft Corp., Mo., 388 S.W. 893; Warmack v. Crawford, Mo., 192 S.W.2d 406; McCaskey v. Duffley, 335 Mo. 383, 73 S.W.2d 188; 8 Missouri Digest, Courts

The relevant allegations of the petition follow: Opie Brush Company is a corporation engaged in manufacturing and distributing janitorial supplies and equipment. Its principal place of business is in Jackson County, Missouri. It operates throughout a much larger territory. The defendant, Hugh F. Bland, is a stockholder, the first vice-president and a director of the corporation. Until January 1, 1966, he was also the corporation’s general sales manager. He resigned as general sales manager effective on that day. Over a long period of time and by the expenditure of large sums of money and large amounts of time the company has developed a favorable business name in Kansas and Missouri as well as in other parts of the United States. By advertising, personal solicitation and other methods it has, at great expense, acquired many customers and has established profitable trade relations particularly in Missouri and Kansas. The good will of the company is a valuable asset. It has operated at a profit. The value of the good will and of the business of the company cannot be definitely stated or ascertained. While Bland was acting as a director, stockholder, officer and general sales manager of the company he had complete access to, and knowledge of, the company’s trade secrets, methods of doing business, full and complete knowledge of its confidential cost, overhead and profit figures and full and complete knowledge of its list of customers and prospective customers. Since resigning as general sales manager, he has been using the information so acquired to the detriment of the company’s business by employing it to obtain for himself “business which was created and developed” while he was general sales manager and an officer and director of the company. He is continuing to do so. He has been personally soliciting business from the company’s customers and is continuing to do so. He has stated that it is his intention to employ the knowledge acquired while acting in the described capacities to obtain the business “which rightfully belongs to the plaintiff company and thus to destroy the good will of plaintiff and its value as a going concern.” He has “obtained business from and made sales to many of plaintiff’s customers since January 1, 1966”, the day he resigned as general sales manager, “said sales being so made by defendant while owing the duty of a fiduciary to the plaintiff company”. It is alleged that “unless defendant is restrained and enjoined from soliciting plaintiff’s customers and selling to them, it will suffer irreparable injury and damage” and it has no adequate remedy at law.

The prayer of the petition is for a decree restraining Bland “from interfering, directly or indirectly, with the trade relations of plaintiff, from in any way using any of the information which he obtained while vice-president, director and general sales manager” of the corporation “for the purpose of competing with plaintiff and from selling or offering to sell any product similar to the products sold by plaintiff to any of plaintiff’s customers.” A temporary order restraining Bland was entered on February 11, 1966. A hearing to determine whether this order should be dissolved was commenced on February 23, 1966. During the course of this hearing the parties requested the trial court to consider the presentation they were then making as one to determine whether a permanent injunction, rather than a temporary one, should be ordered by the court. This was done. Following the hearing, the trial court entered a decree, in accordance with the prayer of the petition, enjoining the defendant for a period of two years from February 24, 1966. Following entry of the decree, the trial court, on defendant’s motion, amended it by reducing the life of the injunction from the original period of two years to. a period beginning February 24, 1966, and expiring on January 1, 1967. The defendant’s motion for a new trial, was duly filed, presented and overruled. He appeals.

Our duty in adjudging this controversy on this appeal is to review the cause both on the law and the evidence and to reach our own conclusions, always taking into account the superior opportunity of the trial court to judge the credibility of the witnesses. Yet we cannot substitute our own conclusions on the evidence and set aside the decree unless we determine that it is clearly erroneous. Civil Rule 73.01, V.A.M.R.; Schertz v. Blocher, Mo.App., 288 S.W.2d 385, 391; National Surety Corporation v. Fisher, Mo., 317 S.W.2d 334, 339.

Appellant contends “that the trial court erred in entertaining this suit and granting any relief because the action had not been instituted by proper authority of respondent’s board of directors.” It is undisputed that five members of the seven member board of directors did meet together and did agree that this suit should be instituted before it was commenced. Whether or not this action by these five board members was legally sufficient is now beside the point. That the company was entitled to injunctive relief from Bland’s conduct we will presently demonstrate. What appellant is actually arguing is that the corporation, in this instance, did not have legal capacity to bring this suit because, as he says, a formal meeting of the entire board of directors was not held with a majority authorizing the suit. Civil Rule 55.15 provides: “When a person desires to raise an issue as to the legal * * * capacity of any party to sue * * *, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” Civil Rule 55.31 authorizes legal capacity to sue to be challenged by motion “whether or not the same may appear from the pleadings and other papers filed in the cause.” Civil Rule 55.37 provides that a party waives all objections and all other matters available to him by motion by failure to assert the same within the time provided by Civil Rule 55.36, except “(1) Failure to state a claim upon which relief may be granted, (2) Failure to state a legal defense to a claim, and (3) lack of jurisdiction over the subject matter.” Civil Rule 55.36 fixes the time allowed for making motions. Appellant made no attempt to comply with any of these rules. When the evidence at the hearing developed that only five members of the board of directors had met and agreed that this suit should be instituted, he did not even make an oral motion raising his claim that respondent had no legal capacity to bring this suit, and he made no suggestion concerning it at all. Actually, he did not file any motion of any nature and he filed no answer or any other sort of pleading. He stood by and allowed the proceeding to go forward until it resulted in a decree against him. Then he made the first suggestion of this complaint to the trial court and he made it for the first time in his “Motion to Vacate Judgment and Decree, or in the Alternative, for a New Trial.” We cannot now exempt him from the consequences of gambling on the outcome of the suit in this way and allow him, when the gamble is lost, to complain that he lost it. Clearly he waived his right to complain and his complaint is without merit. Due to his failure to raise his complaint in a timely way, or at all until after -the entry of the decree, the decisions he cites, Meyer v. Bristol Hotel Co., 163 Mo. 59, 63 S.W. 96; Merrill v. Davis, 359 Mo. 1191, 225 S.W.2d 763, and Coates v. Parchman, Mo.App., 334 S.W.2d 417, are plainly inapplicable. Although we decline to decide his claim of lack of legal capacity to sue for the reason announced, if we did so, we would incline to the logic of Rothman & Schneider, Inc. v. Beckerman, 2 N.Y.2d 493, 161 N.Y.S.2d 118, 141 N.E.2d 610, 64 A.L.R.2d 895, which reviews decisions from various jurisdictions and reaches a result contrary to the one appellant would have us reach.

In his brief, the appellant, Bland, tells us that “with relatively minor exceptions the facts upon which the trial court granted injunctive relief are not in dispute” and our review of the record discloses that this is correct. The Opie Brush Company, respondent, has been engaged in manufacturing and distributing industrial chemicals, janitorial supplies and equipment since 1883. Bland first became associated with the company in 1938. At that time John T. Opie was the sole proprietor. In 1951 Bland became the company’s sales manager and that same year he began buying into the business. Eventually his holdings rose to a 40% interest. The business then became a partnership with Opie holding a 60% interest and Bland a 40% interest. In November, 1956, Opie and Bland incorporated the business. Sixty per cent of the stock was issued to Opie and forty per cent to Bland. Both Opie and Bland became officers and directors of the corporation and both have remained in such capacities until this date so far as this record shows. Opie was president and Bland was first vice-president. Bland continued as sales manager. In 1962 Bland sold 15% of his stock to Opie, retaining a 25% stock interest. In July, 1961 the personal and business relationship between Bland and Opie began to deteriorate. Suffice it to say that Bland disapproved of some of the policies of the corporation and deemed his compensation as sales manager inadequate. With Bland’s views Opie disagreed. There is much evidence in the record relating the details of these differences, hut the view we take of this controversy does not require us to recite it. In December, 1965, Bland advised Opie that he was leaving the company and resigned his position as sales manager. On January 3, 1966, he took employment with Missouri-Kansas Chemical Company, a direct competitor of Opie Brush Company.

In addition to manufacturing and distributing its own industrial chemicals, j anitorial supplies and equipment, the company also contracted with other companies to supply such products to it and it then labeled those products with its private brand name and sold them as its own products. During Bland’s many years with Opie Brush Company and while sales manager, first vice-president and director he not only became familiar with the company’s suppliers but he was the person who worked with their representatives in formulating products for sale by his company and in preparing the private brand names. He had full and complete knowledge of the company’s costs and overhead. He was the person responsible for preparing competitive bids for the company on contracts to be let on bid by corporations, institutions and persons desiring to purchase janitorial supplies and equipment. All of this information was confidential and secret and a knowledge of it could be of substantial advantage to competitors for it would aid them in underbidding the company. As sales manager Bland had his own list of customer accounts. He had called on these accounts for many years prior to resigning from the company and associating himself with Missouri-Kansas Chemical Company. These accounts were the best customer accounts of the Opie Brush Company and Bland always reserved the right to call on them personally and sell them himself. When he left the company and went to work for Missouri-Kansas Chemical Company he took with him not only his confidential knowledge of the company’s affairs but also the list of customers he had serviced for Opie Brush Company over the years as sales manager. He delivered this list to Missouri-Kansas Chemical Company for its use. Written notice was sent to these accounts by Missouri-Kansas Chemical Company advising them that Bland had disassociated himself from Opie Brush Company and associated himself with Missouri-Kansas Chemical Company. In each instance the notice was addressed to the officer or employee of the addressee whom Bland had been personally contacting for sales while selling for Opie Brush Company. He began at once to call on the accounts he had brought with him and to sell those he could the same kind of products he had been selling them for Opie Brush Company. He was continuing to do so at the time the temporary restraining order was issued and he announced that he intended to continue unless enjoined from doing so. He stated that he intended to acquire all of the customers of the Opie Brush Company he could for the Missouri-Kansas Chemical Company unless restrained by the court. He testified that he was actively seeking to get the business of all of those customer accounts for Missouri-Kansas Chemical Company and that he knew that he was putting himself personally in a better position at the expense of the Opie Brush Company. Reviewing the list of sales he had made for Missouri-Kansas Chemical Company from the time he began his employment until the date of the restraining order, he admitted that only five of all of the sales made by him during that period had been to purchasers other than the Opie Brush Company customers. All of the facts we have recited stand admitted on this record. Moreover, the president of Missouri-Kansas Chemical Company testified that a salesman who brings with him to his company a list of established customers he has served for many years is of value to him as a salesman on that account and that it was his experience in the business that the man who contacts the customers is usually the man who gets and keeps their business if he is a well qualified salesman. He considered Bland a highly qualified salesman in the business conducted by Opie Brush Company and Missouri-Kansas Chemical Company. This testimony stands unchallenged.

A few days before the trial, Bland’s deposition was taken and he stated that he had not resigned as first vice-president and director because he wanted to protect his 25% stock interest in the company. This statement was entered in the record during the trial as an admission against interest. During the trial Bland testified that he was still first vice-president and a director of the company and that he had not tendered any resignation. He sought to allay the force of this fact, first, by testifying he had changed his mind about desiring to remain an officer and director, second, by offering as evidence on the second day of the trial a letter to Mr. Opie, as president of the company, attempting to resign as first vice-president and director, and third, by saying that his position as a director had never been of any significance or worth because Opie, as president, really ran the business and he had always been inactive and without influence. Bland was the only witness who testified his position as a director was of no consequence. On the other hand, there was evidence contradictory of his deprecatory evaluation of his position as a director. Mr. Alexander, also a director of the company, testified that Bland had been an active member of the board of directors and that he attended and participated in all meetings held by the board during his own tenure as a director. Furthermore, the record establishes that in 1961 Bland so vigorously opposed the acquisition of a new building by Opie and his wife in their own names, which they proposed to lease to the company, that the proposal was abandoned. We need not decide whether Bland is right in his legal theory that a non-participating or inactive director is exempt from the rules governing active directors, for the trial court found the issues generally against Bland and thus found on the evidence just recited that he was an active director. We adopt the conclusion of the trial court on this issue as our own. In doing so, our action draws strength, we think, from Bland’s admitted betrayal of the trust he owed the company and his violation of his duty to it not to disclose and use for his own profit, and to the detriment of the company, its confidential information which he acquired as its sales manager, first vice-president and director. For he bore a fiduciary relation to the company and he had no right to utilize confidential information acquired by him while in a stategic position of trust for his own profit and to the company’s detriment. 8 Missouri Digest, Corporations, 19 Am.Jur.2d, Corporations, Sec. 1282, p. 690. His admission of his gross misconduct strongly reflects on the credibility of his testimony that he was never more than a non-participating or inactive director.

There is still such a thing as loyalty owing from an officer and director of a corporation to the corporation and its. stockholders and a duty resting on the courts to compel it when it is not voluntarily forthcoming. We are satisfied with our decision in Southwest Pump & Machinery Co. v. Forslund, 225 Mo.App. 262, 29 S.W.2d 165, and hold that it governs this controversy. Although Bland argues that it is distinguishable, we hold on this record that it is altogether indistinguishable. He argues around the superficies of this ruling but never comes to grips with the ruling itself. He cannot. .For it describes and condemns his conduct with such analogy that all he says about its superficial differences simply cannot begin to argue down its undeniable applicability here. Forslund was president and a director of a corporation. He admitted that while serving in those capacities he decided “to obtain all business that he could from any of the customers of the plaintiff, and that he knew that this would hurt the plaintiff, and gave, as his excuse, ‘they tried to hurt me’ ”. He had had a disagreement with the corporation concerning his compensation and was dissatisfied with the outcome. He resigned as president of the corporation but did not resign as director. The corporation learned that its customers proposed to cancel their contracts with it; that Forslund was entering into contracts with those customers ; and that he had opened his own competitive business. It sued for injunctive relief. At the time of the trial in the circuit court, Forslund was representing the principal customers obtained and previously represented by the corporation during the time he was its president and a director. During the course of the trial, upon advice of counsel, he resigned as a director. Nevertheless, the trial court entered a decree enjoining Forslund for three years from interfering with the trade relations, contracts and accounts which the corporation had with its customers and restrained him “from making use of -or — disclosing any knowledge or information gained or obtained from plaintiff * * * while president and director of the company.” It also restrained him for three years “from soliciting orders, either directly or indirectly, for pumps, pumping equipment and accessories, heat regulators and other similar machinery from the plaintiff’s customers” which it had prior to the date of the decree. This court affirmed. We said: “During all this time and even into the trial of the case, defendant was a director of plaintiff company, and shortly previous thereto, when he was president, general manager, and a director, he determined to obtain for himself, and against the interest of the company, a valuable part of its property. When he could not obtain an arrangement to his own liking within the company, he set out to obtain for himself the agency of the principal companies represented by the plaintiff, and began efforts to obtain the trade and customers of the plaintiff and declared his intention to continue in such a course with the knowledge on his part that his action would operate to the great financial injury of the corporation. As a director and as president of the corporation he occupied a fiduciary relation to the company and to its stockholders. His position was one of trust. He was bound to act with fidelity and to subordinate his personal interest to the interest of the company should there be a conflict. He was required at all times to exercise the utmost good faith toward the corporation. His position is treated in the same way as that of a trustee or guardian, and he is not permitted to assume a position inconsistent with this relation. The evidence in this case abundantly demonstrates that defendant failed to act in good faith and unselfishly, but was animated by motives of self-interest if not by revenge against his benefactors. He sought individual profit at the expense of his principal, grossly violated a trust relationship, and committed a flagrant breach of duty. The law will not tolerate and emphatically condemns such conduct.”

We believe there is no substance in Bland’s theory that the trial court had no authority to grant an injunction “on the basis of his alleged fiduciary duty as a director because appellant had resigned any and all connections with respondent prior to the decree.” Our decision in Forslund necessarily took the resignation of the director during the trial into account and did not regard it as precluding injunctive relief to prevent a future betrayal of his trust as a fiduciary. We adhere to this view. Neither Forslund’s nor Bland’s fiduciary duty could be renounced at will by the termination of his directorship. Confidential information acquired by a director of a corporation while acting as its fiduciary cannot be made public property merely because he dissevers himself from the corporation. “ ‘It is as sacred and inviolable after as before the expiration of its term.’ ” Raines v. Toney, 228 Ark. 1170, 313 S.W.2d 802, 809; Trice v. Comstock, 8 Cir., 121 F. 620, 625, 61 L.R.A. 176. We hold that by attempting to resign during the trial Bland could not set himself free to continue at pleasure in the future the betrayal of his trust as a fiduciary that he had practiced in the past.

We have examined all of the decisions he cites to convince us that we should reverse this decree. An analysis of them would only prolong this opinion unduly. Sufficient it is to say that none authorizes a ruling different than the one we make and some of them actually state the principles upon which we ground our ruling.

The judgment of the trial court was clearly right and it is affirmed.

All concur.


source: Caselaw Access Project

author: CROSS, Presiding Judge.

license: Public Domain

text:
    Hazel R. GIBSON, Administratrix of the Estate of Dorothy Lee Burroughs, deceased, Respondent, v. MUEHLEBACH FUNERAL HOME, INC., Appellant.
    No. 24582.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.
    Donald B. Clark, ■ Campbell & Clark, Kansas City, for appellant.
    Reginald A. Smith, Independence, for respondent.
   CROSS, Presiding Judge.

Dorothy Lee Burroughs died on March 8, 1965, from gunshot wounds inflicted by her husband, Jack Burroughs. Decedent’s mother, Hazel R. Gibson, who later was appointed administratrix of decedent’s estate, arranged with Muehlebach Funeral Home for burial of her daughter and funeral services were furnished by Muehlebach Funeral Home accordingly. After unsuccessful efforts to obtain payment from the husband, Muehlebach Funeral Home filed its claim against the deceased wife’s estate in the amount of $1,068.44 on account of “funeral expenses”. The claim was allowed by order of the probate court. Upon appeal by the administratrix, the circuit court heard the cause de novo, without a jury, and entered judgment denying the claim. Muehlebach Funeral Home appeals.

The case was submitted to the circuit court on a stipulation of facts which shows, in addition to the facts heretofore stated, that Jack Burroughs was charged with the murder of his deceased wife, and was then presently released on bail awaiting trial in Jackson County; that he was allegedly residing in California and gainfully employed as of the date of the stipulation; that Mueh-lebach Funeral Home had made repeated unavailing demands upon Burroughs for payment of the funeral bill for his wife’s burial both before and after the claim was filed against her estate in the probate court. Another fact which appears from the probate court records incorporated in the transcript is that Jack Burroughs was confined in the State Hospital at Fulton when the probate court had Muehlebach Funeral Home’s claim under consideration. There is no issue raised as to the reasonableness of the funeral bill and it is stipulated that “the only issue in this case is a question of law to be decided by this court.”

The question of law presented in this appeal is whether the husband of a deceased wife, her decedent estate, or both, are liable for the expenses of her burial. Muehlebach Funeral Home contends that there is a joint and concurrent liability as against both the husband and the estate. The administratrix takes the position that the duty of paying funeral expenses of a deceased married woman devolves solely on her husband and that her estate is not liable for the debt. The two courts which previously tried this proceeding have filed memorandum opinions expressing their views on the question, the substance of which is here noted.

In the memorandum opinion filed by the probate court, it was acknowledged that this court’s ruling in Kent v. Knight, 231 Mo.App. 235, 98 S.W.2d 318, declared the law to be that the estate of a wife who predeceased her husband was not liable for the expense of her funeral, and stated that in the opinion of the writer the appellate court would not now hold the law to be as declared in the Kent case. Speaking for the probate court, Commissioner Laurence R. Smith further said:

“There has been a gradual liberalization of the rights of a woman. A husband and wife are more and more being regarded as equal in their rights and obligations. Illustrative of the change is reflected in the opinion in Novak v. Kansas City Transit, Inc., Mo. En Banc, 365 S.W.2d 539, holding that a wife now has a claim for loss of her husband’s services. Furthermore, the Kent case was decided prior to the adoption of the present Probate Code. Sec. 472.010, Mo.R.S. 1959, specifically defines ‘Claims’ as including ‘funeral expenses’.
“Attention is called to Sec. 451.290, Mo.R.S.1959, enabling a married woman to contract and transact business on her own account and to Sec. 451.250, Mo.R.S. 1959, providing that the separate property of a married woman shall be subject to execution for the payment of debts of her husband created for her necessaries. Burial is to be considered a necessary expense. Since a married woman can contract for liability and her separate property can even be charged for necessaries contracted by her husband, it would be incongruous for her estate not to be liable for her burial.
“We believe that a married woman’s estate should be liable for her funeral expense regardless of her surviving husband’s circumstances. Accordingly, an order will be entered as of this date allowing the claim in full of the Muehle-bach Funeral Home”.

The circuit court in its memorandum opinion and judgment took full note of the probate court’s decision, gave approval to it, but declined to follow it for reasons stated in the following quoted excerpt from the memorandum written by Judge Tom J. Stubbs:

“This court is in full agreement with the rationale of the foregoing Memorandum Opinion and with the result reached, with one qualification. I conceive it to be the duty of this Court to follow controlling Missouri appellate authority without regard to my view as to its wisdom. To express the thought differently, it is the prerogative of Missouri Appellate Courts, rather than of this court, to overrule existing Missouri case law, and it is for this reason that I believe no alternative is open to this court but to find the issues here in favor of Appellant and against Respondent.
“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that the claim of Muehlebach Funeral Home, Inc., be and the same is denied. Costs are assessed against Respondent, for which let execution issue”.

The issues raised here are not new to this court. We have previously considered substantially the same questions in deciding two cases: Reynolds v. Rice, 1930, 224 Mo.App. 972, 27 S.W.2d 1059, and Kent v. Knight, 231 Mo.App. 235, 98 S.W.2d 318. There appear to be no other Missouri cases on the subject. We re-examine our previous opinions. In Reynolds v. Rice, a surviving husband paid his deceased wife’s necessary funeral expense and filed a claim against her estate to recover the amount he had expended. We there held that under the common law which imposed the duty upon a husband to support and maintain the wife while living and to furnish her with necessaries suitable to her station, he was liable for the reasonable funeral expenses incident to her burial; and, that his duty in that respect was not relieved or diminished either by our Married Women’s Acts or by administration statutes then in effect providing for priority and classification of claims against estates of decedents. For those reasons the husband’s claim was denied. Although no issue was before the court respecting the estate’s liability to a third party, the opinion gratuitously treated the question as follows:

“It may be conceded that the estate of a deceased wife is liable to a third party for funeral expenses, but this fact does not aid the argument in favor of the liability of her estate to her husband for such expense. The husband is equally liable, and in case he discharges the obligation he is merely paying his own debt. He cannot demand and receive reimbursement from the estate of his wife for the performance of his own legal and moral obligation to her. If a husband desires to play the role of a derelict, escape his obligation, and shift the burden of the final necessity upon the estate of his wife, he can do it by declining the sacred trust of sepulture”.
“ * * * And we may add that it is a mere matter of justice to afford a third person, who has furnished burial, recourse against the estate of the deceased wife in the event of his failure to collect from an inpecunious husband. The fact that a creditor may have a concurrent remedy against the wife’s estate does not relieve the obligation of the husband. Respondent apparently concedes that, in the event that the deceased wife leaves no estate, the undertaker could compel payment by the surviving husband. We hold that his liability exists whether the wife was solvent or insolvent, and that his obligation to pay such necessary expense is equal to if not greater than the obligation of the estate of the deceased to pay the same”.

In Kent v. Knight, supra, decided in 1936, a husband and wife were fatally injured in an automobile accident. The husband survived the wife by a few hours. An undertaker filed claim against the estate of the deceased wife for the value of his services rendered in connection with her burial. The evidence showed that the husband’s estate was ample to cover the expense of the wife’s funeral. The sole question of law presented was whether recovery should be had against the wife’s estate. In an opinion by Judge Bland, this court said that at common law the husband alone was liable for the burial expenses of his deceased wife and that such liability of the husband grew out of his obligation to furnish his wife the necessaries of life, which include her burial expense. The opinion stated that this common law duty had not been changed or altered by statute in this state, and held specifically that neither the administration statutes as construed in Reynolds v. Rice, nor the Married Women’s Acts imposed a burden upon the estate of the wife to pay her funeral expenses. Accordingly, claimant was denied recovery from the wife’s estate. The Kent opinion comments that the statements contained in the Reynolds opinion to the effect that the wife’s estate would be jointly and concurrently liable with the husband were obiter dicta inasmuch as no question was involved whether the estate was liable to any person other than the husband.

The impact of Reynolds and Kent on the instant case is now considered. We approve and accept the ruling made in both of the former cases that under the common law duty of the husband to support his wife and provide her necessaries while living, he is obligated to pay the expenses of her burial. We are not directed to nor do we find any statute or ruling of Missouri law which diminishes that duty or relieves the husband from it. Therefore it is still the law of this state that a surviving husband is liable for his deceased wife’s funeral expenses. This being so, claimant would be entitled to recover of the husband, Jack Burroughs, by appropriate remedy, the reasonable value of the funeral services in question.

As to whether the estate of a deceased wife is also liable for her funeral expenses the Reynolds and Kent opinions are in direct conflict. It is clearly stated in Reynolds that the wife’s estate is under liability for the debt equal to that of the surviving husband, and that the creditor has a “concurrent” remedy against the estate as well as against the husband to collect for services rendered. While those statements of opinion are supported by convincing reasons, it must be conceded, as was said in the Kent opinion, that they were not directed to the decision of any issue submitted and therefore have no force as actual judicial decision. It must then be said that the only declared case law effective in Missouri on the immediate subject is found in the Kent opinion which held there was no liability against the estate of a deceased wife for her funeral expenses.

There have been changes in Missouri law since Kent v. Knight was decided which compel us to disaffirm the opinion in that case insofar as it rules that funeral expenses of a deceased wife survived by a husband may not be recovered from her estate. Kent was decided some 30 years ago under administration statutes superseded by the 1955 Probate Code which presently applies. Substantial changes in the administration of decedents’ estates have been effected by the superseding statutes. A change of material significance has been made in the laws of descent and distribution. When Kent was decided in 1936, the statutes on that subject made no allusion to the specific subject of funeral expenses, either directly or by reference. In contrast, the present rules of descent subject the de-scendible property of all decedents to the payment of funeral expenses. Section 474.-0Í0 V.A.M.S. provides in part as follows:

“All property as to which any decedent dies intestate shall descend and be distributed, subject to the payment of claims, as follows:
“(1) The surviving spouse shall receive: * * * (followed by specific provisions).

Section 472.010 V.A.M.S. as amended in 1957 entitled “Definitions” reads in pertinent part as follows:

“When used in this Code, unless otherwise apparent from the context: * * *
“(3) ‘Claims’ include liabilities of the decedent which survive whether arising in contract or in tort or otherwise, funeral expenses, the expense of a tombstone and costs and expenses of administration. * * * ” (Our emphasis.)

Accordingly, when the term “claims” is used in the sense of “funeral expenses” (as Section 472.010 permits), Section 474.010 may be read in paraphrase to provide that all property as to which any decedent dies intestate shall descend and be distributed, subject to the payment of funeral expenses. It must be considered that when the legislature enacted the foregoing provision it did so with a particular purpose in mind, inasmuch as the previous statutes of descent made no such provision. The language of Section 474.010 read in connection with Section 472.010 is clear and unambiguous and insofar as it concerns the instant question is susceptible of only one reasonable meaning. We interpret it to mean (among other things) that the de-scendible property (estate) of any decedent, including a deceased wife, is subject to the payment of the decedent’s funeral expenses. This view is reinforced by the provisions made by Section 474.010 for “the surviving spouse”, which clearly indicate the legislature had in mind either a husband or a wife as a survivor, and conversely, either a husband or wife as the decedent, in providing that the property of such decedent would be subject to the payment of “claims” (funeral expenses).

The clear effect of Section 474.010 is to establish a legal liability against the estates of all decedents, including a deceased wife, for payment of the decedent’s funeral expenses. It necessarily follows that in this case there is a legal liability enforcible against the deceased wife’s estate for expenses of her burial, as well as a co-existing liability therefor enforcible against her surviving husband. Each liability arose by separate operation of law, exists separate from and independent of the other, and is equally available to the creditor. The funeral debt may be recovered by proceedings against either the surviving husband or the wife’s estate, or against both, at the option of the creditor.

The enactment of Section 474.010 has providently filled a void in the law which has not well served the cause of justice and the necessities of a civilized society requiring the burial of the dead. By extending liability for the wife’s funeral expenses to her estate the statute has accomplished at least two salutary purposes. It has rendered more certain the payment of a just debt by providing two sources of its satisfaction where previously there was only one. This fact, in turn, renders more certain that the remains of a deceased wife will be decently interred in a manner suitable to her station in life and in accordance with the standards and customs of an enlightened people. The wife is entitled to such a burial at the expense of either her husband or her own estate — otherwise the wealthy wife of an insolvent husband might be subjected to the burial of a pauper or, equally untoward in result, the debt for the funeral might never be satisfied. Inasmuch as her burial is imperative, indispensable and inescapable, it would be grossly unjust for a third person who provides that service to receive no compensation for it. As stated in Gould v. Moulahan, 53 N.J.Eq. 341, 33 A. 483, “Common decency and humanity are regarded by the authorities as authorizing a speedy burial of a decedent by any proper person, unobstructed by hesitation in measuring the responsibilities of the husband and representative, and such exigency affords a strong reason why both those responsibilities for reimbursement should remain available.”

The judgment is reversed and the cause is remanded with directions that a judgment be entered allowing the claim of Muehle-bach Funeral Home in the sum of $1,068.-44.

All concur.

      . Citing In re Estate of Wood, 288 Mo. 588, 232 S.W. 671; and Rudd v. Rudd, 318 Mo. 935, 2 S.W.2d 585.


author: MAUGHMER, Commissioner.

text:
    Carl RIDINGER, Respondent, v. Raymond HARBERT, Executor, Estate of Myrtle L. Cox, deceased, Appellant.
    No. 24563.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1966.

      Robert C. Frith, Chillicothe, for appellant.
    Chapman & Chapman, by Nolan Chapman, Jr., Chillicothe, for respondent.
   MAUGHMER, Commissioner.

This is a suit for services brought by plaintiff, Carl Ridinger, against Raymond Harbert, Executor of the estate of Myrtle Cox, deceased. The jury trial resulted in a verdict for plaintiff in the sum of $5,000. The executor has appealed.

Myrtle Cox and her husband, Milt Cox, resided on a farm near Chula, in Livingston County, Missouri. The plaintiff, who had been working for and living at the home of a neighbor, Mr. Bowman, moved into the Cox home some time during the year 1952. Most of their tillable land was rented out, but the Coxes did keep a few cows, some hogs, some sheep and some chickens. At the time plaintiff came there, Mr. Cox was crippled by arthritis and at least close to being an invalid. He died on May 23, 1958, about six years after plaintiff came into their home. Mrs. Cox died on May 23,1964, exactly six years to the day after her husband’s death. By this claim, Mr. Ridinger sought recovery of $18,000, for his services to Mrs. Cox for the twelve year period from 1952 to 1964.

We summarize the evidence — first that which was offered and received on behalf of the plaintiff, Mr. Lloyd Bowman has known Mr. Ridinger for forty years, and Mr. and Mrs. Cox for twelve years. He is a farmer and was in the Cox home “a number of times”. He saw plaintiff there “hauling hay with the tractor”, “hauling manure out of the barn, mowing the yard, and working in the garden”. Mrs. Cox said to him on various occasions: “I don’t know what I would do without Carl, he takes care of me, he goes ahead and takes care of everything and I expect to make it right with him for his kindness and his work”. “I have been there when Mrs. Cox was apparently well, considering her age, and Carl would be doing the chores, taking care of the stock, maybe hauling hay with the tractor, mowing the lawn”. He said that sometimes they had two gardens and there were chickens.

Wallace Phillips, farmer, living one and a half miles from the Cox farm, speaking of plaintiff, said: “I have seen him fencing and taking care of truck patches and gardens”, “I have seen him taking care of the livestock * * * feeding cattle and hogs”, “I have seen him making fence, cutting weeds, hauling feed”.

Raymond McCrary, a farmer, lived one mile from the Cox farm. He testified that he had seen plaintiff “hauling feed with the tractor, feeding livestock, seen him fencing on different occasions, working in the truck patch, such as that”. He stated there was some field work he did not believe Ridinger was able to do.

Mrs. Homer Harris, wife of the pastor of the Alpha Baptist Church, said plaintiff “did housework when Mrs. Cox was not able, and even when she was, he helped her. He did the milking, he fed the hogs and calves and when Mrs. Cox was in the hospital, why, he stayed right there and took care of everything. He fed off the calves for her and hogs, got them ready for market”.

Dr. R. W. Matheny, D.O., was in Mrs. Cox’s home 23 times prior to her death and visited her in the hospital on many occasions. He considered her health to be “very poor”. When he called at the Cox home he always saw plaintiff there, sometimes in the house, at the barn or around the premises.

Mrs. Arlin Gates had known plaintiff for about eight years. Their farm adjoins the Cox farm. For the first four years she described his activities this way: “Well, he done housework. He did the dishes and cooked. I have seen him around the farm feeding the hogs and milking”. Then the Gates family moved to Chula and she “couldn’t see him doing that too much”.

Mr. Ralph Moore is a farmer. He regularly employed from two to five men as farm hands. He expressed the opinion that the services which plaintiff performed, as described by the witnesses, were reasonably worth $60 per month. He said his own full time farm hands received “their house, they got meat, they got milk, they got a garden spot, and utilities and anywhere from $175 to $225 per month.”

The evidence generally revealed that plaintiff received his board and room, some clothing and the premiums on a burial insurance policy. The record does not disclose his exact age, but he is an elderly man.

On behalf of defendant, Mrs. Grace Har-bert, sister of Mrs. Cox, testified. She said she was in the Cox home almost every day and that Mrs. Cox’s health “wasn’t too good”. She declared that on many occasions Mr. Ridinger told her, “I am going to stay with Milt and Myrtle. I am going to get my room and board and clothes”.

Raymond Harbert, nephew of Mrs. Cox, reported that he had several conversations with plaintiff concerning what he was being paid, and that Mr. Ridinger told him he was receiving “room and board”. He also said that his aunt gave plaintiff money every time they went to town.

Mrs. Marjorie Harbert (wife of Raymond) said they tried to get Carl (plaintiff) to come to their place and she said to him: “Carl, we asked you to come up to my place first”, and Carl replied: “Well, Myrtle needed me worse than you and she offered to give me room and board”. She said she heard conversations between plaintiff and Mrs. Cox in which plaintiff agreed to work for his room, board and clothing. The jury, as trier of the facts, has passed upon these disputed, factual issues.

The plaintiff was not related to either Mr. Cox or Mrs. Cox by blood or marriage, nor was any family relationship deducible from their association. It is well settled that where there is no family relationship and no showing that the services were performed without expectation of pay, the law presumes an intention on the part of one rendering valuable services at the request of another, to charge therefor, and implies a promise on the part of the latter to pay the reasonable value thereof, which may be recovered in quantum meruit. Songer v. Brittain, Mo.App., 272 S.W.2d pp. 16, 20; Wells v. Goff, 361 Mo. 1188, 239 S.W.2d 301; Embry v. Martz’ Estate, Mo.Sup., 377 S.W.2d 367, 370, 371.

On appeal appellant lists seven assignments of error. The first complains that the court erred in “overruling appellant’s objection to introduction of evidence of respondent’s services to Milt Cox prior to his death on May 23, 1958, thereby permitting the jury to consider and in their verdict award respondent compensation for services against the estate of Myrtle Cox which had been performed for Mr. Cox”. Appellant does not indicate where in the record such testimony was received, nor do we find any such evidence. The jury was certainly not instructed to consider any services which plaintiff might have performed for Mr. Cox. Plaintiff’s case was predicated upon a specific allegation and finding that they were rendered to Mrs. Cox. In Songer v. Brittain, 272 S.W.2d 16, 20, plaintiff sued to recover compensation for services rendered as housekeeper and practical nurse for defendant and her husband from January 11 to October 20, 1948. Plaintiff had judgment for $1500. On appeal defendant urged “that she could not be liable for debts of her deceased husband”. It was ruled that plaintiff could recover from defendant in quantum meruit for services rendered to defendant or at her instance and request.

In Point II, appellant asserts there was no proper evidence as to the reasonable value of respondent’s services, and that the award was grossly excessive. This proposition has not been developed by either the citation of any authority or by reference to it in the printed argument, as is required by Rule 83.05, V.A.M.R. However, we believe the testimony of the witness, Ralph Moore, that the services were worth $60 per month was competent. It is further our opinion that the allowance of $5,000 for six years of services rendered to Mrs. Cox after her husband’s death, plus that part of the six years’ services which were rendered to her alone prior to the death of Mr. Cox, who was an invalid, or nearly an invalid, cannot, as a matter of law, be ruled excessive.

In Assignment No. 3, defendant complains that he was not allowed to show that plaintiff was (1) “not capable of being a full employee” and (2) “he was not normal mentally”. Here again the alleged error has not been developed by either citation of authority or by reference to it in the printed argument. However, as we read the printed record, it is not contended that plaintiff was a “full employee”— $60.00 per month (the estimate put upon the value of his services by the witness Moore) would not be adequate pay for full time work and plaintiff’s own evidence contains testimony that there was “some farm work” that plaintiff was unable to do. We doubt if lay witnesses can just express the conclusion that a person is “not normal mentally”. Certainly there was no evidence offered that plaintiff was mentally or physically unable to adequately perform the tasks which plaintiffs witnesses said he did perform.

In his Fourth Assignment of Error defendant says the court refused to let him show that plaintiff “before and after he worked for Mrs. Cox and Mr. Cox had worked for his maintenance only”. In No. 5, he says the court refused to receive in evidence Mrs. Cox’s Last Will and Testament in which there was a bequest to plaintiff of $500.00. Again there is no citation of authority nor was there at the trial any formal offer of proof. Under this state of the record we shall not hold that the court’s rulings on these matters constituted reversible error.

Defendant next says the court erred in giving Instructions No. 3 and No. 4 because the same were, in effect, peremptory instructions for plaintiff, and that at the time same were only proposed MAI instructions. We set out the instructions:

“INSTRUCTION NO. 3
“Your verdict must be for the plaintiff if you believe:
“First, the plaintiff furnished to Myrtle L. Cox valuable services before her death, and
“Second, Myrtle L. Cox accepted the benefits of such services.”
“INSTRUCTION NO. 4
“If your verdict is in favor of plaintiff, then you must reward him the reasonable value of the services furnished”.

There was no contention that plaintiff was in any way related to Mr. or Mrs. Cox and no suggestion that a family relationship existed. Instructions No. 3 and No. 4 told the jury that if it believed plaintiff “furnished services to Mrs. Cox before her death”, and she accepted the benefits of such services, then the jury “must reward him the reasonable value of his services”. We find nothing wrong with these instructions. We believe they properly declared the law. Defendant has neither cited nor suggested any appellate opinion or other authority which he contends holds otherwise.

Appellant’s final point alleges the court erred in refusing defendant’s Instructions Nos. 7, 8 and 9, “as being proper converse instructions”. These suggested instructions are short and we incorporate the same, including the trial court’s written ground for refusal, in this opinion.

“INSTRUCTION NO. 7
“Your verdict must be for defendant if you believe that plaintiff and Myrtle Cox agreed upon a basis of payment for any services rendered by plaintiff, and that Myrtle Cox duly performed her part of such agreement.
“Refused instruction No. 7 above is not MAI.”
“INSTRUCTION NO. 8
“Your verdict must be for defendant if you believe that plaintiff has already been paid for all services furnished to Myrtle Cox.
“Refused instruction No. 8 above is MAI 33.20 proposed”.
“INSTRUCTION NO. 9
“Your verdict must be for defendant if you believe that plaintiff and Myrtle Cox agreed upon the basis of payment for any services rendered by plaintiff, and that plaintiff was paid by Myrtle Cox for such services.
“Refused instruction No. 9 is not MAI”.

The trial court apparently refused Instructions Nos. 7 and 9 because neither is an MAI instruction. No. 8 was refused because ⅛ was onl7 MAI ProPosed- Probably these stated Srounds in and of themselves are not valld &rounds for refusaL

In support of this Seventh Assignment defendant invites our attention to the opinion in Chance v. Atchison, Topeka and Santa Fe Ry. Co., Mo.Sup., 389 S.W.2d 774, 778 (opinion handed down April 12, 1965, which was after the effective date of MAI). There the Supreme Court said:

“In a converse instruction the defendant may submit either the exact converse of plaintiff’s verdict directing instruction, Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, or the exact converse of any essential element of such instruction. Liebow v. Jones Store Company, Mo., 303 S.W.2d 660, 662. Such a converse instruction does not require affirmative testimony in support of it. Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464. The defendant ‘may also submit facts in an instruction, the existence of which would disprove, that is controvert, one or more of the essential factual elements of plaintiff’s case.’ Liebow v. Jones Store Co., supra.”

The case before us began when plaintiff filed his claim in the Probate Court of Livingston County on November 6, 1964. Therein he asserted that he had performed work and labor for deceased (Mrs. Cox) at her instance and request for a period of 12 years and that he had given credit to her estate for all payments and offsets to which it is entitled. The case was certified to the circuit court for jury trial. Defendant filed no pleading of any kind in either the probate or circuit court.

Counsel for defendant in his opening statement said the defense was that plaintiff was to receive room, board, clothing and payment of his burial insurance premiums and nothing more.

The proposed instructions (7, 8 and 9) are certainly not “the exact converse of plaintiff’s verdict directing instruction or the .exact converse of any essential element of such instruction”, as converse instructions are defined in the Chance case and by MAI 29.01, pages 245, 246. The exact converse of plaintiff’s Instruction No. 3 would be that plaintiff did not furnish valuable services to Myrtle Cox before her death and that she had not accepted the benefits of such services. Defendant’s only asserted error inherent in the refusal of his Instructions Nos. 7, 8 and 9 is that they were “proper converse instructions”. Therefore, we might overrule the assignment without any further comment since appellant suggests no other error. However, the Supreme Court in the Chance case also tells us that defendant “ ‘may also submit facts * * * the existence of which would disprove, that is controvert, one or more of the essential elements of plaintiff’s case.’ ” This type of instruction must have evidentiary support. The Chance opinion so holds and MAI so states.

We find no substantial evidence that plaintiff and Mrs. Cox ever agreed “upon a basis of payment for his services”. The only testimony touching this subject is that from some of Mrs. Cox’s relatives to the effect that plaintiff said: “He was receiving room and board”. Furthermore, if there was any such evidence of a contractual agreement, the instruction should declare what it was. If plaintiff had been paid “for all services rendered” either under a contract or as full remuneration under his quantum meruit claim, the instruction should point out what payments had been made; that is, room and board and premium payments on his burial insurance, as to which there was affirmative evidence. We are admonished by Rule 83.13(b):

“No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action”.

See Schraedel v. St. Louis Public Service Co., Mo.App., 248 S.W.2d 25. We find no error here committed against the appellant which, in our opinion, materially affects the merits of the action.

It is our belief that the jury had before it quite fully the fact that plaintiff had received board and room, plus the burial insurance premiums, the exact amount of which was not revealed.

We find no reversible error and the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: TITUS, Judge.

text:
    Hester M. MILLER, Administratrix of the Estate of C. E. Miller, Deceased, Plaintiff-Respondent, v. PLAINS INSURANCE COMPANY, a corporation, Defendant-Appellant.
    No. 8582.
    Springfield Court of Appeals. Missouri.
    Nov. 21, 1966.
    Motion for Rehearing or Transfer to Supreme Court Denied Dec. 16, 1966.
    Application to Transfer Denied Jan. 9, 1967.

      Riddle, O’Herin & Newberry, Malden, for defendant-appellant.
    Dalton, Treasure & Bullard, Kennett, for plaintiff-respondent.
   TITUS, Judge.

Daizy Corrine Miller, wife of C. E. Miller, was killed in an accident on January 14, 1965, while she was riding in a Chevrolet owned and driven by Hazel Gales. The Chevrolet figured in a collision with an uninsured 1957 Pontiac owned and operated by Leon Hopper. Mrs. Gales, who also perished in the crash, was the named insured in a Special Package Automobile Policy defendant Plains Insurance Company had issued effective January 1, 1965, to July 1, 1965, and which was in force on the date of the casualty. The policy provided, among other things, $500 medical expense coverage (which included expenses for funeral service) and Protection Against Uninsured Motorists coverage with a limit of $10,000. After Mr. Miller’s demand for payment under these two coverages was denied, he instituted the present action on March 30, 1965. The case was tried to the Circuit Court of Pemiscot County, Missouri, with jury waived, and Mr. Miller was awarded judgment of $10,000 on his claim under the uninsured motorists provision and $500 on count two of his petition relative to the medical expense coverage. After the appeal of the insurance company to this Court was perfected Mr. Miller died, and a stipulation in the nature of a motion to substitute Hester M. Miller, administratrix of the estate of C. E. Miller, deceased, as plaintiff-respondent was filed. We refer in this opinion to the parties as they were known in the trial court.

Affirmatively defendant asserted in its answer the policy “was void ab initio” because Hazel Gales made untrue representations in her application which “was a part of the policy of insurance,” that the “representations contained in said application were material to the risk * * * and that this Defendant would not have undertaken said risk had it known that the said Hazel Gales had been involved in an accident and had been arrested for moving traffic violations, namely, hazardous driving.” No reply was filed to the answer.

In its “Declaration of Law” the trial court found “there was not sufficient material misrepresentation to Defendant Company to void its policy.”

The policy recites that “in reliance upon the statements in the declarations made a part hereof,” the insurer agreed to insure Mrs. Gales, and “by acceptance of this policy, the insured * * * agrees that the statements in the declarations and in any subsequent application accepted by the company which are offered as an inducement to the company to issue or continue this policy, are his agreements and representations, that this policy is issued and continued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.” The application, admittedly signed by Hazel Gales on December 30, 1964, contained negative answers to inquiries if she had been involved in an accident in the past five years or had any moving traffic violations or any arrest of any kind during the past three years. Item 10 of the declarations contained in the policy asked if Mrs. Gales had “been involved in an automobile accident while operating any private passenger type automobile, resulting in damage to any property including [her] own, or in bodily injury or death during the preceding 36 months ? If ‘Yes’ complete the following.” The question was answered “No.”

Except for the exhibits, the evidence in this case consisted of offers and stipulations ore tenus. The parties and the trial court proceeded on the theory the application for insurance was a part of the policy (as pleaded in the answer), which is a hypothesis not inconsistent with the contract provisions above noted. It was not until respondent’s brief was filed that any reference was made to physical separation of the policy and the application. As subsequently noted and because of insured’s policy agreements, this is of no consequence in this cause. The exhibit shows, and plaintiff’s brief admitted, defendant actually received the application. No suggestion has ever been made as to the applicability of any statute to the matters in issue. Appellate courts are not prone to paddle beyond the perimeter of the puddle plied by the parties in the trial court and our review will be made on the same theories and assumptions heard by the trial judge. What we say should not be construed as determining the effect of any statutory law which has been wholly disregarded by the litigants. Trantham v. Home Insurance Co. of New York, Mo.App., 137 S.W.2d 690, 693.

The parties stipulated that if defendant’s agent was to testify he would state the questions on the application were not read to Hazel Gales and she did not read the form before signing it. There was no claim or suggestion of any fraud, mistake, or concealment by the agent. The exhibit indicates Mrs. Gales was thirty-eight years of age when she signed the application and was then gainfully employed as a supervisor. Her signature indicates some skill in penmanship, and no doubt has been cast upon her ability to read and comprehend the printed questions and the sometimes printed and sometimes written, but always legible, answers appearing on the application. In such circumstances Mrs. Gales was legally bound to know the contents of the application she signed, whether she read it or not (Minich v. M. F. A. Mutual Insurance Co., Mo.App., 325 S.W.2d 56, 58[3] and [5]; Gooch v. Motors Insurance Co., Mo.App., 312 S.W.2d 605, 609 [2]), and this is not affected by the fact she relied upon or trusted the agent to prepare the application for the policy. Bearden v. Countryside Casualty Co., Mo.App., 352 S.W.2d 701, 706(4).

Contrary to both the application and the policy declarations, Mrs. Gales had an accident in Clay County, Arkansas, on December 13, 1962, when the automobile she was driving came into collision with an uninsured truck. She then was insured by Zurich Insurance Company and on January 24, 1964, sued Zurich in an Arkansas state court under the Family Protection Against Uninsured Motorists provision of the policy claiming $10,000 damages. The case was removed to the federal court and subsequently returned to the state tribunal where, on November 21, 1964, a judgment was entered dismissing the case without prejudice to Mrs. Gales. In some fashion unknown to us the matter was reinstated in the Arkansas court, for on February 18, 1965 (a month and four days after the death of Mrs. Gales), an order was made dismissing the case with prejudice. The order recites Mrs. Gales and Zurich had compromised and settled their differences. Zurich had paid Mrs. Gales $5,200 in settlement of her claim.

The evidence additionally reveals that following the Arkansas accident a summons was issued charging Mrs. Gales with hazardous driving. However, because Mrs. Gales was confined to a Piggott, Arkansas, hospital in a serious condition subsequent to the accident, the Arkansas state trooper failed to serve the summons before Mrs. Gales left the hospital and returned to Missouri. The justice of the peace at Piggott would have said his records revealed a plea of guilty had been entered to the charge of hazardous driving filed against Mrs. Gales, and although the justice had no personal recollection of the matter, a guilty plea would be recorded only if Mrs. Gales had personally pleaded guilty, if her attorney had appeared and entered such a plea, or if her bond had been forfeited.

The proposed testimony of the various witnesses was all subject to various objections. Suppositions of defendant’s agent as to what “he could have asked” Mrs. Gales when the application was prepared and signed and what he would have done had he known the truth were also offered by the plaintiff. Defendant likewise objected to tendered conclusions made by an unidentified agent for Zurich as to who he surmised was at fault in the Arkansas accident.

Without objection the parties stipulated defendant’s underwriting manager would testify that at the time Mrs. Gales’ application for insurance was received, it was the custom and business practice of the company to decline any risk where a person applying for coverage had been involved in an accident within the previous five years or had within three years prior to the application been arrested for any moving violation.

Plaintiff’s arguments pointing to the fact defendant’s agent had authority to and did, in fact, bind the coverage does not appear to reach any issue in this case. No claim is made to the contrary and the fact defendant seeks to avoid the contract on the grounds stated presupposes the agent had bound the coverage and effected a contract. The issue concerned, according to defendant’s pleadings and the theory on which the case was tried, was whether or not defendant can now avoid the contract because of the alleged material misrepresentations made by Hazel Gales. We likewise summarily note and rule, contrary to plaintiff’s contention, that defendant was not limited to ordinary cancellation of the policy to avoid liability where the claim is made it was void or voidable because of a material misrepresentation.

A material misrepresentation renders a transaction voidable as to the person making it and all who stand in no better position. Minich v. M. F. A. Mutual Insurance Co., Mo.App., 325 S.W.2d 56, 57(1); Restatement of Contracts § 476G), p. 908; State Farm Mutual Auto. Insurance Co. v. West (DCMd.), 149 F.Supp. 289, 305(11). The trial court’s declaration “there was not sufficient material misrepresentation to Defendant Company to avoid its policy” would constitute a tacit finding a material misrepresentation had been made but for the adjectives employed which terminate the statement at the opposite conclusion. Concerning words, Through the Looking Glass informs us, “They’ve a temper some of them — particularly verbs; they’re the proudest — adjectives you can do anything with, but not verbs.” Since the net result of the trial court’s declaration of law amounts to a situation where no material misrepresentation had been made, we willingly follow the advice that adjectives are something “you can do anything with,” which includes ignoring them completely. Ergo, based on this adventure in grammar gymnastics and by obliterating the word '“sufficient,” we proceed on the assumption the trial court found no material misrepresentation was made.

What is a material misrepresentation ? A misrepresentation that would likely affect the conduct of a reasonable man in respect to his transaction with another is material. Materiality, however, is not determined by the actual influence the representation exerts, but rather by the possibility of its so doing. A representation made to an insurer that is material to its determination as to what premium to fix or to whether it will accept the risk, relates to a fact actually material to the risk which the insurer is asked to assume. The word “risk” does not relate to an actual increase in danger but to a danger determined by the insurer’s classification of the various circumstances affecting rates and insur-ability. That the fact misrepresented has no actual subsequent relation to the manner in which the event insured against occurred, does not make it any the less material to the risk. Thus, whether a misrepresentation is material in an application for an automobile insurance policy, is determined by whether the fact, if stated truthfully, might reasonably have influenced the insurance company to accept or rej ect the risk or to have charged a different premium, and not whether the insurer was actually influenced.

A warranty is a “parcel of the contract,” i. e., a part of the contract by either being physically present therein or being incorporated therein by reference, and, absent statutory changes (or where, as here, otherwise pleaded) must be absolutely true whether material or not, and even though innocently made. Ignoring the insurance application for the moment, the declarations were physically a “parcel of the contract,” and contained in the declarations was the false statement that Mrs. Gales had not been in an automobile accident during the preceding thirty-six months. But for the burden defendant assumed by its pleading in declaring Mrs. Gales’ representations material, the mere falsity of this warranty might have served to avoid the contract. Mrs. Gales’ acceptance of the policy constituted her agreement the statements which she made in both the declarations and the application constituted her “agreements and representations,” and because the contract recites the policy was “issued and continued in reliance upon the truth of such representations,” it was permissible for defendant to show it relied upon the truth of the statements contained in the application, whether they constitute warranties or representations. See State Farm Mutual Auto. Ins. Co. v. Butler, 203 Va. 575, 125 S.E.2d 823, 826(2); State Farm Mutual Auto. Ins. Co. v. West, supra (DC Md.), 149 F.Supp. 289, 304-305(10). The application was an offer to become a part of the contract when accepted and any material misrepresentation therein contained would render the policy voidable whether the misrepresentation was made intentionally or through mistake and in good faith.

Mrs. Gales having been physically involved in the Arkansas accident obviously had knowledge of that event and, because of the apparent seriousness of that casualty and the fact the law suit she filed (and which was still pending at the time of her death) would serve as a constant reminder, she is presumed to have had knowledge thereof when she signed the application and accepted the policy in question. 1 Merrill on Notice, § 37, p. 26, and § 43, pp. 34-36. The representations in both the application and the declarations to the effect Mrs. Gales had not been involved in an accident either three or five years previously were false.

Plaintiff offered to show by a man who was “dating” Mrs. Gales that he paid her fine on the traffic violation arising from the Arkansas accident and further offered this gentleman’s conclusion Mrs. Gales “never knew” a summons had been issued against her charging hazardous driving. Although it seems improbable a swain would keep secret from his lady-fair the tidings of such a deed, and while it is apparent one person cannot know what was never within another’s knowledge, there is a dearth of authority holding receipt of such testimony to be prejudicial error. Sneed v. Marysville Gas & Electric Co., 149 Cal., 704, 87 P. 376, 378(1). Even though we do not revel in “the sport to have the engineer Hoist with his own petar” (Hamlet), if we accept plaintiff’s offer the effect is the same as if it were rejected. A material misrepresentation, as noted by the previously cited authorities, will serve to avoid a contract even though the misrepresentation be made through mistake. Funk & Wagnalls New Standard Dictionary of the English Language 1952, defines mistake as “an act or omission arising from ignorance or misconception.” “The essential prerequisite of mistake • is ignorance * * * ” 58 C.J.S. Mistake, p. 830. Also, “ ‘a mistake of fact takes place, when some material fact, which really exists, is unknown * * *.’ ” Caudill v. Chatham Mfg. Co., 258 N.C. 99, 128 S.E.2d 128, 130(1, 2). Consequently, it would appear Mrs. Gales was bound by the negative answer appearing on her application to the inquiry if she “had any * * * moving traffic violations” during the past three years, whether she was ignorant of the fact or not.

Safeco Insurance Company of America v. Gonacha, (1960), 142 Colo. 170, 350 P.2d 189, concerned “no” answers insured had made on his application to each of the questions: Has any insurer cancelled or refused insurance for insured ? Has any user been involved in an accident (as a driver) during the past three years? The facts were the insured had been refused insurance and was involved in two accidents within three years prior to his application. The Supreme Court of Colorado held, 350 P.2d 1. c. 191(2) : “The representations here made being false and material to the risk, and the insurance company having relied thereon in entering into the contract, the necessary grounds to void the policy were met.”

The application offered in evidence in State Farm Mutual Automobile Ins. Co. v. West, supra (DCMd.), 149 F.Supp. 289 (a case cited in several Missouri cases) gave the false answer “none” to the question as to accidents, and a false checkmark under the “no” box in answer to the question as to suspension or revocation of operator’s license or registration. At page 305 of the opinion the court stated: “The court, already having found as a fact that the negative answers * * * in the applications were material, false, and relied upon by the insurer in issuing the policies, so rules as a matter of law.” Also see State Farm Mutual Automobile Ins. Co. v. Butler, (1962), 203 Va. 575, 125 S.E.2d 823, where the assureds represented they had not been involved in previous accidents nor suffered revocation of driver’s license, whereas in truth both had figured in prior collisions and the wife had been convicted of “speeding” and suffered revocation of her driver’s license; and Government Employees Insurance Co. v. Powell, 2 Cir., 160 F.2d 89, where insured, via letter written by his agent, represented his brother (previously arrested for “driving under the influence”) would drive the car “once a week to go shopping and once or twice a week to commute to work.” This was ruled a material misrepresentation because assured was overseas and had left the insured vehicle with his brother to drive at will.

A declaratory judgment action to secure nullification of an automobile liability insurance policy was the subject of Pittman v. West American Insurance Co., 8 Cir. (1962), 299 F.2d 405. The insured answered “no” to the question, “Has any user been involved in an accident (as a driver) in the past three years?” The truth was insured had been involved in an accident within three years of the date of his application and was fined $16 for careless driving on a charge growing out of the collision. Judge Duncan presided at the trial of the case before a jury and instructed: “ ‘ * * [I]t was the opinion of the Court, as a matter of law, that he had had an accident and the Court will say to you that it was his duty to reveal that fact to the insurance agent at the time he signed this application * * * and if he had concealed the evidence, under this evidence if he concealed that fact and did not reveal it * * * then it was a material misrepresentation or failure to advise the agent concerning a material fact and would void the policy * * ” On appeal, the Circuit Court of Appeals, 1. c. 411, said: “We think * * the conclusion of the trial court that the misrepresentation of the insured in his application avoided the policy as a matter of Missouri law, was a permissible one.”

It is a well-known fact insurance companies rely on expense, loss, and other statistical data to measure differences among risks and thus ascertain rates to be charged for individual risks in accordance with standards for measuring variations in hazards. This is recognized and, to some extent, controlled by our statutes. Questions as to traffic violations of prospective insureds and as to previous accidents in which they have been involved are legitimate fields of research for insurance companies, for these are not only rate-determining facts but may also determine if the risk will even be insured. In consideration of the authorities previously cited, and with particular reference to the Pittman case, supra, we are of the opinion the misrepresentations involved in this case might reasonably be expected to have influenced the insurance company to have accepted or rejected Mrs. Gales as an insured or to have charged her a different premium for issuing her a policy. As the only evidence in this case is that if defendant had known the truth it would have declined the risk, we are drawn to the conclusion the misrepresentations were material and should permit defendant to avoid its liability under the policy.

The foregoing makes it unnecessary for us to consider the other issues asserted by the parties. The before-noted motion to substitute Hester M. Miller, Administratrix of the estate of C. E. Miller, deceased, as the plaintiff-respondent herein is sustained and the substitution is ordered allowed.

The judgment against defendant is reversed.

STONE, P. J., and HOGAN, J., concur.

      . Haire v. Stagner, Mo.App., 356 S.W.2d 305, 308(3); Greathouse v. Wolff, Mo.App., 360 S.W.2d 297, 301(2); Dugan v. Trout, Mo.App., 271 S.W.2d 593, 598 (10); State ex inf. Mooney ex rel. Stewart v. Consolidated School Dist. No. 3, Mo.App., 281 S.W.2d 511, 515(12); Griffin v. Anderson, Mo.App., 369 S.W.2d 889, 892(7); Olsten v. Susman, Mo., 362 S.W.2d 612, 614(3); 5 Am.Jur.2d Appeal and Error § 546, pp. 31-32; 4 C.J.S. Appeal and Error § 241 d (1) (2), and (3), pp. 730-738.

      . Bearden v. Countryside Casualty Co., supra, Mo.App., 352 S.W.2d 701, 707(5, 6); Restatement of Contracts § 470(2), p. 891; 7 Wigmore on Evidence, 3rd Ed., § 1946, pp. 60-61; 7 Couch on Insurance 2d § 35:79, pp. 92-95, § 35:82, p. 99, and § 35:87, pp. 102-103.

      . Grand Lodge, United Brothers of Friendship, etc. v. Mass. Bonding & Ins. Co., 324 Mo. 938, 25 S.W.2d 783, 785 and 787 (7); Ettman v. Federal Life Ins. Co., 8 Cir., 137 F.2d 121, 125(2), 126(4); Pacific Mutual Life Ins. Co. v. Glaser, 245 Mo. 377, 150 S.W. 549, 551(2), 45 L.R.A.,N.S., 222; 29 Am.Jur. Insurance § 710, pp. 970-971; 7 Couch on Insurance 2d §§ 35:67-35:75, pp. 76-88; 12 Appleman Insurance Law & Practice, § 7341, pp. 440-443.

      . Commercial Bank v. American Bonding Co., 194 Mo.App. 224, 187 S.W. 99, 101-102 (9); Prentiss v. Illinois Life Ins. Co., Mo., 225 S.W. 695, 702(8); Park v. Fidelity & Casualty Co., Mo.App., 279 S.W. 246, 248(5); 29 Am.Jur. Insurance §§ 711 and 712, pp. 971-972; Aloe v. Mutual Reserve Fund Life Ass’n, 147 Mo. 561, 49 S.W. 553, 556-557; McDermott v. Modern Woodmen of America, 97 Mo.App. 636, 71 S.W. 833, 836; Pacific Mutual Life Ins. Co. v. Glaser, supra, 245 Mo. 377, 150 S.W. 549, 551(2), 552(3), 45 L.R.A.,N.S., 222; Ettman v. Federal Life Ins. Co., supra, 8 Cir., 137 F.2d 121, 125(2), 126(3), and 127(9); Dixon v. Business Men’s Assurance Co. of America, (Banc), 365 Mo. 580, 285 S.W.2d 619, 625(5, 6); Kirk v. Metropolitan Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333, 342-343(7); 17A C.J.S. Contracts § 494 (l),p. 707.

      . Minich v. M.F.A. Mutual Insurance Co., supra, Mo.App., 325 S.W.2d 56, 57(1-3); Bearden v. Countryside Casualty Co., Mo.App., 352 S.W.2d 701, 705(2); Haman v. Pyramid Life Ins. Co., Mo.App., 347 S.W. 2d 449, 454(1, 2 and 3); Pittman v. West American Ins. Co., 8 Cir., 299 F.2d 405, 410; 17 C.J.S. Contracts § 135, pp. 866-871.