text:
    Robert LINCOLN, Respondent, v. RAILWAY EXPRESS AGENCY, INC., and Edward L. Gruenewald, Appellants.
    No. 48894.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 10, 1962.

      Gentry, Bryant & Sheppard, Arnot L. Sheppard, St. Louis, for appellants.
    Gerard M. Dorsey, Dorsey & Aulbert and William L. Mason, Jr., St. Louis, for respondent.
   HOUSER, Commissioner.

Action for damages for personal injuries arising out of a vehicular collision. Robert Lincoln recovered judgment for $20,000 against Railway Express Agency, Inc., and its truck driver Edward L. Gruenewald. Both defendants appealed.

Plaintiff was driving an eastbound taxicab in St. Louis County on St. Charles Rock Road, a six-lane concrete roadway divided by a median strip. The cab and an eastbound panel truck owned by the agency and driven by Gruenewald collided when the truck turned left in attempting to make a U-turn at the Ridgeway Avenue crossover. The three eastbound lanes will be referred to as follows: The lane nearest the median strip, Lane 1 (15 feet wide); the center lane, Lane 2 (15 feet wide), and the outer or southernmost lane, Lane 3 (10 feet wide). Walton Road, which enters St. Charles Rock Road from the south, is 320 feet west of the Ridgeway crossover. On the south side of St. Charles Rock Road there are business buildings, with a macadamized private parking area in front of them.

Plaintiff’s petition charged defendants with fifteen separate assignments of negligence, including failure to keep a lookout, suddenly turning to the left and into the path of the cab in close proximity thereto without giving a signal or warning, and failure to approach the intersection for a left turn in the lane or portion of the right half of the roadway nearest the center line thereof, in violation of statute. The answer was a general denial and a plea of contributory negligence in so driving and operating the cab as to cause, allow and permit the cab to collide with the left rear end of the truck.

Plaintiff’s version of the facts: From the top of the incline to the point of collision (1500 feet, clear view) plaintiff drove the cab at 20-25 m. p. h., at no time checking his speed, at all times in Lane 1, with the left wheels of the cab a foot and a half south of the south edge of the median strip. Immediately after the cab crossed Walton Road plaintiff first saw the truck, then 150— 160 feet east of the cab, just beginning to move from the private parking area onto Rock Road at 3, 4 or 5 m. p. h. One half or maybe three-fourths of the truck had crossed into Lane 3. The truck emerged on an angle from the parking area northeast into Lane 3, moved east maybe 20-25 feet in Lane 3, then crossed diagonally into Lane 2, and continued east in Lane 2 for a distance of 90 or 100 feet. When the truck reached Lane 2 the cab was 15, 20 or 25 feet west of the truck. The cab continued east in Lane 1 at 20-25 m. p. h. and the truck continued east in Lane 2 at a speed up to 15-20 m. p. h. The cab at no time passed the truck, but remained 10-20 feet behind the truck. Both vehicles were traveling in the middle part of their respective lanes. The truck did not move out of Lane 2 until it reached a point 10 to 20 feet west of the west side of the Ridgeway crossover, at which point the truck “all of a sudden” started turning left on about a 45-degree angle, headed northeast, moving from plaintiff’s right to his left across plaintiff’s path of travel, reaching a point “squarely in front” of the cab. No left-turn directional signals or manual signals were given by the truck driver. The east-west distance between cab and truck at that time was variously estimated by plaintiff at from 5 to 25 feet, and the north-south distance between them was approximately two feet. When plaintiff saw the truck make this turn plaintiff immediately took his foot off the accelerator and put it on the brake pedal. He did not know whether he depressed the brake pedal. The collision occurred. “It happened so quick.” At that time the speed of the truck was 15-20 m. p. h. and the cab’s speed was 20-25 m. p. h. At time of collision the front part of the truck was in the crossover and 10-15 feet of the back part of the truck was in Lane 1. The right front fender of the cab struck the truck on the left side behind the rear wheels, halfway between the left rear fender and the rear end of the truck. The cab was 16-17 feet long. The truck was 20-22 feet in length.

Gruenewald’s version of the facts: He parked the car in Lane 3 and after making a delivery to one of the business buildings drove in low gear from the south curb of Rock Road, pulled away from the curb about a foot, looked out the left door for traffic and then for the first time saw the cab coming from the west, approximately 425 feet away. He did not determine the speed of the cab. The truck was in low gear, traveling 5 m. p. h. then. At no time did Gruenewald change gears or reach a higher speed than 5 m. p. h. He proceeded to cross Lanes 3 and 2 into Lane 1, and went east in Lane 1. At no time after he saw the cab 425 feet away did Gruenewald ever again look to the west toward the cab as he was proceeding across the road to Lane 1, nor did he slow down his truck, or check his rearview mirrors to determine the location of the cab. The truck did not travel in Lane 2 at any time, except to cross over, hut pulled into Lane 1 and continued straight east in Lane 1 approximately 100 to 150 feet — “a half a city block” — until it reached the crossover. As the truck proceeded east in Lane 1 the left wheels were approximately one foot away from the median strip. Gruenewald admitted he did not give any hand signal that he was going to make a U-turn. He claimed he turned •on the directional lights, but did not know whether they went “on” or were working at the time.

Plaintiff went to the jury on two separate verdict-directing instructions. No. 1. submitted a violation of § 304.018, subd. 1 (2) , applicable portions of which provide: “1. The driver of a vehicle intending to turn at an intersection shall do so as follows: * * * (2) Approach for a left turn shall be made in the portion of the right half of the roadway nearest the center line thereof * * No. 2 submitted failure to keep a lookout and sudden turning in close proximity without signal or warning. On appeal defendants attack Instruction No. 1 on twelve different grounds, No. 2 on six grounds, and contend that the verdict is self-destructive.

Instruction No. I

“The Court instructs the jury that under the law of Missouri there is imposed upon the driver of a motor vehicle who intends to turn his vehicle to the left at an intersection the duty to approach said intersection in the lane or portion of the right half of the roadway nearest the center line.

“The Court therefore further instructs you that if you find and believe from the evidence that on the occasion mentioned in the evidence, the plaintiff, Robert Lincoln, was operating an automobile east-wardly in the first traffic lane south of the median or center divider of St. Charles Rock Road at or near its intersection with Ridgeway Avenue, both open and public streets and highways in the City of St. John, St. Louis County, Missouri, if you so find, and if you further find that at said time and place, defendant Railway Express Agency, Inc., acting by and through its agent and servant, defendant, Edward L. Gruenewald, were operating a motor truck eastwardly in the second traffic lane south of the median or center divider of St. Charles Rock Road and to the right or south of the traffic lane occupied by the plaintiff and when they were at or near the aforesaid intersection they did turn their said motor truck to the left from said second traffic lane and into collision with the automobile operated by the plaintiff, if you so find, and, if you further find that the defendants, Railway Express Agency, Inc., and Edward L. Gruenewald, in approaching said intersection were intending to turn to the left and did fail to drive in the first lane or portion of the right half of the roadway nearest the center line thereof, but instead drove in the second traffic lane and to the left therefrom and into collision with the automobile operated by the plaintiff, then you are instructed that the defendant, Railway Express Agency, Inc., acting by and through its agent and servant, defendant Edward L. Gruenewald, were guilty of negligence ; and, if you further find and believe that as a direct and proximate result of such negligence, if you so find, the motor truck so operated by the defendants Railway Express Agency, Inc., and Edward L. Gruenewald was caused to be brought into collision with the automobile with plaintiff therein, and that as a direct and proximate result of such collision, if you so find, the plaintiff, Robert Lincoln, was caused to be injured thereby, and if you further find that the plaintiff, Robert Lincoln, was at all times mentioned in the evidence exercising the highest degree of care in the operation of his said automobile, then you are instructed that the plaintiff is entitled to recover against the defendants, and your verdict should be in favor of the plaintiff, Robert Lincoln, and against both the defendant, Railway Express Agency, Inc., and against the defendant, Edward L. Gruenewald.”

Appellants say the first paragraph of No. 1 injects error because it categorically postulates an unqualified duty and makes it negligence under any and all circumstances to fail to drive as therein required, whereas the rule of the road upon which it is based, § 304.018, subd. 1(2), does not confer absolute rights or create absolute duties but creates reciprocal duties which may be qualified by circumstances; that it was error to tell the jury that the violation of law in this respect invariably and unqualifiedly constitutes actionable negligence as a matter of law. The first paragraph is an abstract statement of the general rule of law ordinarily applicable, imposing upon one intending to turn a vehicle left at an intersection the duty to approach in the lane nearest the center line. In stating the general rule it was not necessary to state the exceptions, qualifications and limitations applicable in abnormal, emergency or exceptional circumstances.

Appellants argue there can be no absolute or unqualified duty and no negligence per se in violating a statute which is amhiguous and requires construction; that the terms “roadway” and “approaching” occurring in § 304.018, subd. 1(2) are ambiguous and need interpretation; therefore the section cannot “create negligence per se.” We do not consider the terms “roadway” and “approaching,” as used in No. 1. under the facts of this case, ambiguous or in need of construction. They are plain, ordinary English words which the average juror would have no difficulty in understanding and applying to the instant simple, uncomplicated fact situation.

Appellants say “plaintiff is precluded from reliance upon statutory or per se negligence” for the reason that the evidence presented two conflicting and divergent sets of essential facts, under one of which plaintiff would be entitled to prevail and under the other of which defendants should prevail; that under these circumstances, under the cases of Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496; Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Breshears v. Union Electric Company of Missouri, Mo.Sup., 347 S.W.2d 233; Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972; Steele v. Goosen, Mo.Sup., 329 S.W.2d 703; Politte v. Miller, Mo.App., 301 S.W.2d 839, 845; Fortner v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 10, plaintiff’s verdict-directing Instruction No. 1 should have postulated and required the finding of the facts essential in law to support the verdict; and that No. 1 “presents to the jury no such necessary findings of fact.” The fact that the parties present conflicting and divergent theories of the manner in which the collision occurred does not preclude one injured by violation of a statute from relying upon negligence per se. The facts in this case essential to a recovery for negligence ini violating § 304.018, subd. 1(2) are (a) a vehicle (b) driven by defendants who intend to turn at an intersection, (c) approaching the intersection for a left turn not in the portion of the right half of the roadway nearest the center line thereof, (d) colliding with a vehicle being operated by a plaintiff exercising the highest degree of care, and (e) causation between negligence and injury. No. 1 hypothesized these facts, together with the direction in which the vehicles were proceeding, the lanes in which they were traveling, and the driving of the truck from the second lane into collision with the cab, in the lane nearest the center line. This hypothesization covered all of the essential facts. It was not necessary to hypothesize the speeds and relative distances apart of the two vehicles at various times, or failure to give a turn signal, as appellants seem to contend.

Appellants contend that § 304.018, subd. 1 (2), which is limited to persons who intend to make left turns at intersections, is not applicable here; that it placed no duties upon these defendants and “has nothing to do with this case” because “the uncontra-dicted evidence shows conclusively that defendant Gruenewald was not intending to make a ‘left turn’ at an intersection,” under § 304.018, subd. 1(2), but was intending to make a U-turn under § 304.018, subd. 2. The record does not support appellants’ contention. The answer alleged that “the Railway Express Agency truck was making a left turn out of one side of a six-lane divided highway for the purpose of crossing over at the end of the island dividing the east and west traffic, ⅜ * Gruenewald testified he “went east to the end of this island to make a left turn to go west on St. Charles”; that it was his intention to "turn to the left” at this intersection and “double back”; that he was intending “to make a left turn there, * * * you can call it a U-turn or a left turn” (Emphasis supplied in all quotations.) Furthermore, appellants’ contention that § 304.018, subd. 2, which regulates U-turns under certain specified circumstances not here involved, placed no such duties upon Gruenewald as are postulated in No. 1, is irrelevant. Gruenewald admitted he intended to and was making a left turn. The left turn statute imposed certain duties upon him, no matter what he may have intended to do after turning left. A U-turn to the left cannot be made without making a left turn. If it is appellants’ contention that while a left turn must be made from the lane nearest the center line, a U-turn may be made from the second lane or lane farthest from the center line, they are in error.

Appellants press the point, citing Willhite v. City of St. Louis, 359 Mo. 933, 224 S.W.2d 956, Terrell v. McKnight, 360 Mo. 19, 226 S.W.2d 714, Myers v. Buchanan, Mo.Sup., 333 S.W.2d 18, Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045, and Karch v. Stewart, Mo.Sup., 315 S.W.2d 131. It has been frequently stated that traffic regulations are not unyielding and inflexible and are not to be applied rigidly, absolutely and peremptorily without regard to circumstances or conditions, Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, MacArthur v. Gendron, Mo.App., 312 S.W.2d 146, and that the duties thereby imposed may be qualified by circumstances, Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, such as considerations of safety, Lix v. Gastian, Mo.App., 287 S.W.2d 354, emergency conditions, Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736, or impossibility. Politte v. Miller, supra. In such unusual circumstances deviation from the statutory standard will not be considered as negligence per se. In Willhite v. City of St. Louis, supra, the unusual circumstances were such that a jury might find it not negligent to pass another automobile on the right, so it was error to instruct that it was negligence as a matter of law, under all circumstances, to so pass. And we recognize a difference in the nature of the duties imposed by various rules of the road. Some impose absolute duties unmixed with the exercise of judgment. Others require the exercise of judgment. Terrell v. McKnight, Swain v. Anders, and Karch v. Stewart, supra, are examples of the latter. In them instructions were stricken down which erroneously foreclosed the jury from considering whether the required care was exercised under the facts, and arbitrarily declared that failure to comply with the rule of the road constituted negligence. In Myers v. Buchanan, supra, the jury, in order to apply the rule of the road, was required to determine whether the driver had certain knowledge, actual or constructive, which depended upon the finding of facts, but the instruction imposed an absolute duty upon the driver regardless of knowledge. None of these situations prevails here. We find no unusual or exceptional circumstances which require the applicable rule of the road to yield to other considerations. Section 304.018, subd. 1 (2) imposes a duty unmixed with the exercise of judgment, under which a driver of a vehicle intending to turn left at an intersection is required to make his approach for a left turn in the portion of the right half of the roadway nearest the center line thereof. Neither the presence, speed or movements of other vehicles, nor the driver’s knowledge of these factors, plays any part in the application of § 301.018, subd. 1(2). The only absolving hypothesis of fact upon which appellants could have been acquitted of the statutory negligence charged, under the evidence in this case, would have been a submission that Gruenewald complied with the rule of the road by approaching the intersection in the lane nearest the center line (a converse of Instruction No. 1). We conclude that appellants’ complaint that No. 1 fails to hypothesize all of the facts upon which defendants’ negligence could be based and is drawn on the theory that a mere finding of making a left turn from a lane other than the lane nearest the center line is sufficient as a predicate of negligence regardless of attending circumstances, is not well taken.

Next, appellants complain that No. 1 hypothesized that their truck was driven “into collision with” the cab whereas in fact the cab was driven into the truck, so the instruction was broader than the evidence, and confused and misled the jury. This point is overly refined. To “collide” means to strike together; involves the concept of two bodies dashing against each other or clashing with some degree of force, and implies “ ‘an impact, the sudden contact of a moving body with an obstruction in its line of motion.’ ” Berry, Law of Automobiles, 7th Ed., Vol. 6, p. 664 et seq. See Boecker v. Aetna Casualty and Surety Co., Mo.App., 281 S.W.2d 561, 563. The truck was driven into collision with the cab, and vice versa, regardless of what part of the one vehicle came in contact with what part of the other.

Finally, No. 1 is said to be fatally defective for failure to require a finding of the existence of a hazard or danger to someone and knowledge by appellants, actual or constructive, of the existence of the danger; that absent such a finding no duty arose requiring Gruenewald to recognize the danger and act. Awareness of danger, however, is not an element of the duty under § 304.018, subd. 1(2). The General Assembly has fixed the standard of conduct required of a driver approaching an intersection with the intention of making a left turn. Knowledge or awareness of danger to others is not an element of the statutory duty under the legislative prescription, and we are not authorized to attach such a tail to the section.

Instruction No. 2, the target of appellants’ second series of assaults, follows:

“The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in the evidence, the plaintiff, Robert Lincoln, was operating an automobile eastwardly immediately to the south of the median or center divider of St. Charles Rock Road at or near its intersection with Ridgeway Avenue, both open and public streets and highways in the City of St. John, St. Louis County, Missouri, and if you further find that at the time and place mentioned in the evidence, plaintiff was exercising the highest degree of care in the operation of his said automobile, if you so find, and if you further find that the defendants, Railway Express Agency, Inc., and Edward L. Gruenewald were operating their motor truck eastwardly in St. Charles Rock Road and to the right or south of the vehicle operated by plaintiff at the place mentioned in the evidence, if you so find, and if you further find that said automobile with plaintiff therein and the motor truck of the defendant did then and there collide and that as a direct result thereof, if you so find, plaintiff was injured thereby, and if you further find that at and prior to said collision said Railway Express Agency, Inc., acting by and through its agent and servant, defendant Edward L. Gruenewald, did fail to keep a lookout for eastbound vehicles on said St. Charles Rock Road, if you so find, and did suddenly turn their said motor truck to the left and into the path of the automobile of plaintiff when said plaintiff’s automobile was in close proximity thereto and without giving any signal or warning, if you so find, and if you further find that said defendants Railway Express Agency, Inc., and Edward L. Gru-enewald did thus and thereby fail to exercise the highest degree of care in the operation of their said motor truck and were negligent (if you do find that said defendants did fail to exercise the highest degree of care and were negligent in the operation of their said motor truck in failing to keep a lookout for eastbound automobiles on said St. Charles Rock Road, if you so find, and in suddenly turning without any signal or warning their said motor truck to the left and into the path of the automobile of plaintiff when plaintiff’s automobile was in close proximity, if you so find) and that the collision occurred as a direct and proximate result of such negligence of the defendants, and that plaintiff was caused to be injured thereby if you so find, then your verdict should be in favor of the plaintiff, Robert Lincoln, and against both the defendants, Railway Express Agency, Inc., and the defendant Edward L. Gruenewald.”

Appellants contend that Nos. 1 and 2 are in direct conflict in that the jury could find for plaintiff under No. 1 without first having to find that Gruenewald failed to keep a lookout for plaintiff and failed to signal his intention to make a left turn, whereas under No. 2 these were necessary findings; i. e., the jury could not find for plaintiff under No. 2 without finding that Gruenewald failed to keep a lookout and failed to signal his intention to turn left. There is no conflict between Nos. 1 and 2. They are not repugnant or irreconcilable. No. 1 submits violation of the statutory rule of the road requiring left turns from a certain part of the roadway. No. 2 submits common law failure to keep a lookout and sudden turning to the left into the path of the cab in close proximity thereto without giving any signal or warning. Plaintiff had a more onerous burden under No. 2 than under No. 1 but this does not make them conflicting or inconsistent. The several assignments of negligence submitted were pleaded and the evidence supports them. If plaintiff’s evidence be accepted Gruene-wald violated the rule of the road with respect to the required lane on approaching an intersection with intent to turn left, and suddenly turned into the path of the cab while in close proximity and without giving any signal or warning. The two instructions are complementary and consistent.

Appellants’ principal complaints are that No. 2 fails to require the finding of facts creating a duty upon the truck driver to keep a lookout or warn of an intended turn, or warranting the conclusion that the truck driver was negligent in failing to do so, but assumes the existence of the duty, requires the jury to find only that no lookout was kept or signal given, and fails to define the phrase “close proximity.” These contentions are without merit. No. 2 did not assume the existence of these duties, but required the finding of facts which as a matter of law gave rise to these duties, and provided a sufficient standard and basis for a finding of negligence on the part of Gruenewald in these respects. The quick of the matter for decision by the jury under No. 2 was whether Gruenewald failed to keep a lookout for eastbound vehicles ; whether he suddenly turned left into the path of the cab when the cab was “in close proximity” thereto without giving any signal or warning, and whether this, constituted negligence under the facts. A more detailed fact picture than that submitted in No. 2 was not necessary in order for the jury to determine these questions. There was a sufficient hypothesis of the ultimate issuable facts and a sufficient standard for the guidance of the jury in determining negligence vel non. The words “in close proximity thereto” did not require factual delineation because this is a term that no layman would misunderstand.

Next appellants object that No. 2 failed to postulate any facts showing that if Gruenewald had kept a lookout for the cab or signaled his intention to make a left turn, the collision would have been averted. In a primary negligence case it is sufficient to submit failure to keep a lookout, together with a finding of causation, and it is “unnecessary to submit the further hypothesis that by keeping a proper lookout defendant could have seen plaintiff” or could have averted the collision. Fortner v. St. Louis Public Service Co., Mo.Sup., 244 S.W.2d 30, 14, 15, cited and quoted approvingly in Thaller v. Skinner & Kennedy Co., Mo. Sup., 315 S.W.2d 124, 130.

Finally, appellants complain that No. 2 does not require a finding that the vehicles were in “dangerous” proximity to each other or that at any time Gruenewald knew, actually or constructively, that they were so situated, and that a collision would occur if preventive measures were not taken. “Close” proximity may be equated with “dangerous” proximity, under the instant facts. There is no dispute about the fact that Gruenewald knew the cab was approaching from the west, for he admitted he saw it when it was at a point approximately 425 feet away, and that he drove at 5 m. p. h. straight across the right half of the roadway (and thus into its path), without once more looking to the west or making any effort to ascertain the location of the cab. The point is without merit. See Brumback v. Simpson, Mo.Sup., 247 S.W. 2d 635 [3], 639.

Appellants’ last point is that the verdict is self-destructive and should not be permitted to stand. After deliberating the jury returned two verdicts, both signed by the foreman, one for plaintiff for $20,000 and against both defendants; the other for plaintiff for $20,000 and against the corporate defendant but in favor of the individual defendant. Counsel for defendants objected to the inconsistency of the verdicts. The court then instructed the foreman that the court had received two verdict forms but that only one form of verdict was appropriate, saying “You will have to use one form or the other and I am going to send you back to your jury room to decide upon the verdict you want to bring in.” The foreman said: “Did I sign two instead of one paper?” The court indicated that he had. The foreman said “Well, I can easily correct that.” The court sent the jury back, directing them to take the two.forms of verdict to the jury room “and work out your solution as a jury.” Defendants’ counsel did not object except the one time, as indicated. Thereafter the jury returned a single verdict finding the issues for plaintiff for $20,000 and against both defendants, in unexceptional form. The present objection was not made at that time, nor was it made in the motion for new trial. Notwithstanding the point has not been properly preserved, Supreme Court Rule 83.1'3(a), V.A.M.R., we have considered it and have determined that the court acted properly; that no prejudice to appellants’ rights resulted, and that appellants have no cause for complaint.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . All section references are to RSMol959, V.A.M.S.

      . In Sander v. Callahan, Mo.Sup., 351 S.W. 2d 691, 696, criticism of the words “an immediate hazard” was not sustained; in Garrison v. Ryno, Mo.Sup., 328 S.W.2d 557, the phrase “at a time when the automobile ⅜ ⅝ * was approaching so closely on [the through highway] as to constitute an immediate hazard” was hold sufficient; in Wines v. Goodyear Tire & Rubber Co., supra, 246 S.W.2d loc. cit. 531, the words “as close as practicable” were upheld; in MacArthur v. Gendron, supra, tbe failure to more particularly define the clause “yield tbe right of way” was upheld; in Wirth v. St. Louis County Transit Co., Mo.App., 253 S.W.2d 547, the words “as near to the right hand side of the road as practicable” were held not to require definition; and Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243, sustained an instruction using the words “reasonable warning” without defining the term.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Elgin E. SANDERS, Appellant, v. CARL BERRY OIL COMPANY, Respondent.
    No. 48798.
    Supreme Court of Missouri, Division No. 2.
    July 16, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied Sept. 10, 1962.
    Robert H. Miller, Gene C. Morris, Reed-O. Gentry and Rogers, Field & Gentry, Kansas City, for appellant.
    Jack G. Beamer and McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City,1 for respondent.
   STOCKARD, Commissioner.

Plaintiff, Elgin E. Sanders, has appealed from an adverse judgment entered pursuant to a jury verdict in his suit for $25,000 for personal injuries resulting from a fall.

On December 15, 1958, William Ray Spurgeon, an employee of defendant, Carl Berry Oil Company, delivered 1,500 gallons of fuel oil to the Fredric Hotel.' In the process of pumping the oil into a pipe recessed behind an iron door of the hotel building about two gallons of the oil was spilled on the surface of a public alley which was located on the west side of the hotel. At 3:00 o’clock the following morning the plaintiff, a taxi driver who lived at the hotel, started to walk to his cab which was parked on a nearby parking lot. Instead of walking on an available lighted sidewalk, which route he had used about four hours earlier in walking from his cab to the hotel, plaintiff took a shorter route through the dark and unlighted alley, stepped on what he said was the fuel oil spilled by Spurgeon, and fell and was injured. Defendant introduced evidence to the effect that there was ice and snow on the surface of the alley, and that after the oil was spilled Spurgeon wiped all of it up with rags. The inference from the evidence is that there were no sidewalks in the alley for pedestrian use.

At the request of the defendant the trial court gave an instruction on contributory negligence, the terms of which will subsequently be discussed. Plaintiff contends that the trial court erred in giving any instruction on contributory negligence because an alley is a public street and he had a right to presume that the city had complied with its duty to maintain the alley in a reasonably safe condition for travel, and for that reason he could not, as a matter of law, be found guilty of contributory negligence. Defendant contends, on the other hand, that by voluntarily entering the dark and unlighted alley when a safe and lighted way was available, plaintiff was guilty of contributory negligence as a matter of law. We disagree with both contentions.

Bearing upon both of these contentions is the issue of a presumption that a public way is safe. In suits against a municipality where the issue for determination was whether a person traveling on a public way in the nighttime was guilty of contributory negligence as a matter of law when injured by reason of falling in a hole, ditch or other defect in the public way, the courts have said that a person is entitled to presume that a street or sidewalk is safe for travel by night as well as by day. Conner v. City of Nevada, 188 Mo. 148, 86 S.W. 256; Dinsmore v. City of St. Louis, 192 Mo. 255, 91 S.W. 95; Kirk v. Kansas City, Mo. App., 129 S.W 2d 1058; Vick v. City of De Soto, Mo.App., 86 S.W.2d 367; Clark v. City of Atlantic Beach, Fla.App., 124 So.2d 305; Vol. 19, Municipal Corporations, McQuillin, 3rd ed. Sec. 54.123. This presumption is based on the theory that “the city had done its duty in keeping its street in a reasonably safe condition.” Conner v. City of Nevada, supra, 86 S.W. at p. 260. See also Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566, 569. However, this is not a suit against the city, and the evidence does not affirmatively show that the oil had been on the surface of the alley for a sufficient period of time to charge the city with notice and to afford it an opportunity to correct the situation. It appears somewhat incongruous for plaintiff to argue that he had the right to presume that the city had performed a duty which, under the evidence in this case, apparently did not exist. Notwithstanding this possible situation which differentiates this case from those relied on by plaintiff, what we consider to be the correct rule, and which is recognized as the “prevailing rule” in Vol. 19, Municipal Corporations, McQuillin, 3rd ed., Sec. 54.123, was stated by Judge Lamm in a separate concurring opinion to Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566, 570-571. It was there said that while a footman in a proper case “may presume a city has done its duty in keeping its sidewalks in a reasonably safe condition for travel by pedestrians, by night as well as by day, yet that presumption runs with a condition. It goes hand in hand with another vital proposition, viz., that a footman must use ordinary, that is, due, care to avoid injuring himself. Such care is the care of an ordinary person under like circumstances. Such care is broad enough to create the duty to look and see where one is going, as well as the duty to avoid danger when actually discovered. That does not mean a pedestrian is an inspector of sidewalks, or cannot take a step without looking down to see that his feet do not carry him into a pit, * * *. He need not be watching at every footfall for defects, but he should act like a prudent person, who makes reasonable use of his eyes while walking. He cannot shut his eyes, or blindfold himself, or walk backward, or not look about him at all, or, under the assumption that no defects exist walk heedlessly into obvious ones.” It is obvious that plaintiff is in error when he contends that as a matter of law he could not be found to be negligent.

We conclude that under the facts and attending circumstances a jury could reasonably find that when plaintiff entered the alley in total darkness at three o’clock in the morning when a safe and lighted sidewalk was available for his use he did not exercise the care of an ordinary reasonable and prudent person. See Kirk v. Kansas City, Mo.App., 129 S.W.2d 1058; Magennis v. City of Pittsburgh, 352 Pa. 147, 42 A.2d 449; Carroll v. New Orleans Ry. & Light Co., 132 La. 683, 61 So. 752; Roberts v. City of Fairborn, 102 Ohio App. 91, 141 N.E.2d 297; 63 C.J.S. Municipal Corporations § 854. However, reasonable men, in the honest exercise of a fair impartial judgment would not necessarily reach the above conclusion, and in such event a person is not to be held guilty of contributory negligence as a matter of law. Brandt v. Thompson, Mo., 252 S.W.2d 339. The trial court was correct in ruling that whether or not plaintiff was guilty of contributory negligence was a jury issue.

We shall now examine plaintiff’s contentions that Instruction No. 7 on the issue of contributory negligence was prejudicially erroneous. This instruction provided that if the jury found that (1) plaintiff left the hotel about 3 :00 o’clock in the morning and entered the alleyway; (2) “at said time there was no natural illumination from the moon or the stars and there were no street lights or other artificial sources of light which illuminated said alleyway;” (3) plaintiff proceeded down the alleyway “without the use or assistance of a flashlight or other source of illumination;” (4) the alleyway was paved with brick and patched with asphalt and covered in places with ice, snow and frozen slush; (5) at various times over the last few years and on the 15th day of December, 1958, fuel oil had been spilled on the surface of said alleyway in the vicinity of the oil pipe in the wall of the hotel; (6) “on the 16th day of December, 1958, the plaintiff by the exercise of reasonable care, saw or should have seen said ice and oil on the surface of said alleyway;” (7) plaintiff elected to enter such alleyway without any means of lighting his way and slipped on said ice or oil; and (8) “such conduct” on the part of plaintiff was negligence which caused or directly contributed to cause plaintiff’s injuries, then plaintiff could not recover and the verdict of the jury should be for defendant.

Plaintiff contends that the facts hypothesized in item (6) above were not supported by the evidence, and that by reason of items (2) and (6) the instruction required the jury to reach contrary and inconsistent findings in that it was required to find that plaintiff was negligent in walking into the alley in complete darkness without providing a light, and that he was negligent in failing to see the oil and ice on the surface of the alley when complete darkness existed. We agree with plaintiff as to both contentions, but we need not go into further detail to demonstrate that item (6) was not supported by the evidence because the instruction would have been erroneous even if supported.

This precise issue was recently before the court en banc in Pigg v. Bridges, Mo., 352 S.W.2d 28. There the plaintiff fell down a stairway, and the defendants’ instruction on contributory negligence hypothesized in the conjunctive, and required the jury to find, that “by looking he [plaintiff] could have discovered said stairway, and * * * he stepped into the doorway and into said stairway at a time when he could not ascertain what the said doorway led to, * * *.” The court stated that there was evidence to support each hypothesis and that defendants would have been entitled to submit each in the disjunctive. It was then held: “It needs no argument, however, to demonstrate that, submitted conjunctively, the two inconsistent contradictory findings of [the instruction] required the jury to find two facts which could not coexist. Such direction amounted to misdirection under which a jury properly could not perform its function and the instruction was therefore prej-udicially erroneous.” See Thomas v. Kimsey, Mo., 322 S.W.2d 754, 758; and Pijut v. St. Louis Public Service Company, Mo., 330 S.W.2d 747, 752, 753. Instruction No. 7 obviously hypothesized in the conjunctive two directly contradictory findings of fact, that is, that there was no light whatever in the alley and that under such circumstances plaintiff saw or should have seen the ice and oil on the surface of the alleyway. We can see no possible distinction between the Pigg case and this one which would prevent Instruction No. 7 from constituting an affirmative misdirection. We do see a distinction which adds to its prejudicial effect. In the Pigg case each hypothesis was supported by the evidence. In this case item (6) un-questionábíy was not. The theory of the instruction, except for item (6), was that plaintiff was negligent in entering the alley when it was so dark he could not see, hut item (6)' required the jury to find that he did see or should have seen, which if true destroyed the theory of the remainder of the instruction. In addition to the inconsistency, the fact that item (6) had no support in the .evidence added confusion.

Defendant contends that the above interpretation ignores the’ phrase, “the plaintiff by the exercise of reasonable care,” which prefaced the required finding that plaintiff “saw or should have seen said ice and oil on the surface of said alleyway.” It asserts that the jury was not asked to find that plaintiff could see in the dark but “were asked to find that the hazard would have been visible to plaintiff in the exercise of ordinary and reasonable care for his own safety,” that is, he “should.have seen” the ice and oil if he had provided himself with a flashlight or other artificial light. This interpretation leaves entirely unexplained why the requirement was included that if he had provided himself with a light he “saw or should have seen,” and the presence of the word “saw” is inconsistent with defendant’s interpretation. In addition, this strained construction now asserted by defendant is not what the instruction says, and we are convinced that no reasonable jury could have so interpreted it.

Plaintiff also challenges Instruction No. 6, á burden of proof instruction because it contains the phrase “to your reasonable satisfaction.” In the event of a new trial defendant may redraft the instruction if so advised in view of the attacks made by plaintiff against it.

For the prejudicial error in Instruction No. 7 the judgment is reversed and the cause remanded.

BOHLING, C., concurs.

BARRETT, C., dissents.

PER CURIAM.

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

All of the Judges concur.


author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri ex Inf. Thomas F. EAGLETON, Attorney General of Missouri, ex rel. REORGANIZED SCHOOL DISTRICT R-I OF MILLER COUNTY, Missouri, and Louie Apperson, Oran D. Clawson, Harold Clotworthy, Thomas Banner, Emmett W. Dunstan and Roscoe Denny, Constituting the Board of Directors of Reorganized School District R-I of Miller County, Missouri, and Emmett W. Dunstan, Individually, Relators, v. Charles VAN LANDUYT, Jim F. Hughes, James L. Walton, Roy C. Gerber, George Berkstresser, and W. F. Wornell, the Pretended Board of Directors of the Purported Reorganized School District R-III of Morgan County, Missouri, Respondents.
    No. 49301.
    Supreme Court of Missouri, En Banc.
    Aug. 6, 1962.
    Motion for Rehearing Denied Sept. 10, 1962.
    Harry H. Kay, Eldon, and John W. Ing-lish, Jefferson City, for relators.
    Edgar Shook, David R. Hardy and David H. Clark, Kansas City, and William G. Johnson, Versailles, for respondents; Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
   HOLLINGSWORTH, Judge.

This is an original proceeding in the nature of quo warranto brought by the Attorney General at the relation of allegedly Reorganized School District R-I of Miller County, its alleged directors, and an individual resident taxpayer of said district, hereinafter referred to as Relators, against the persons allegedly elected directors of allegedly Reorganized School District R-III of Morgan County. Both of these school districts were recently reorganized, purportedly in accordance with the laws of this state; and both assert jurisdiction over an area consisting of four former common school districts.

Prior to the formulation and adoption of the reorganization plans in question here, one of which is valid, there existed four common school districts numbered and known as No. 58, Routon, No. 59, Barnett, No. 61, McKinley, and No. 62, Joe Taylor, hereinafter referred to by numbers only. All of these districts lay wholly within Morgan County and adjoined Miller County Reorganized School District R-I and Morgan County Reorganized School District R-II. By virtue of the reorganization plans at issue, Reorganized School District R-III of Morgan County claims jurisdiction over all of former Districts Nos. 58, 59, 61 and 62; and Reorganized School District R-I of Miller County claims jurisdiction of said former districts, except Sections 4, 9 and 16, Township 40 North, Range 16 West, of Morgan County. Re-lators contend that Reorganized School District R-III of Morgan County is not a validly organized district and respondents contend that it is.

The facts giving rise to this dispute are: In the first plan of reorganization, submitted June 27, 1949, by the Morgan County Board of Education and approved by the State Board of Education, under the school reorganization law enacted in 1947, the Morgan County Board released to the Miller County Board of Education eight common school districts in the eastern part of Morgan County, including said Districts 58, 59, 61 and 62. The first plan of reorganization submitted by the Miller County Board included said eight districts in Morgan County, with a high school center at Eldon. That plan was disapproved by the voters on August 23, 1949. From that date until June 3, 1960, the Miller County Board did not submit to the State Board a school district reorganization plan incorporating therein any Morgan County school districts. A subsequent plan of reorganization prepared by the Morgan County Board and approved by the State Board, submitted on May 23, 1951, included the formation of a single Morgan County enlarged elementary district from the eight districts in the eastern portion of said county, including the four districts here involved, but said proposed plan was not approved by the voters of the proposed reorganized district.

A third plan of reorganization submitted by the Morgan County Board on September 28, 1953, set aside said eight districts, including Districts 58, 59, 61 and 62, in the eastern portion of Morgan County “to be included in some future reorganization with an area in Miller County, included in the main in District R-I, Miller County, Missouri.” A proposal to form District R-II of Morgan County in said plan was adopted and subsequently two of the said eight districts on the eastern edge of Morgan County were annexed to District R-I of Miller County, which had been previously organized.

A fourth plan of reorganization by the Morgan County Board and dealing with the remaining four districts in the eastern part of Morgan County, submitted on April 2, 1957, was disapproved by the State Board of Education. At that time six common school districts in eastern Morgan County, inclusive of the four districts here involved, were not a part of any reorganized district. Subsequently, two more of said districts in eastern Morgan County were annexed to Miller County Reorganized School District R-I, leaving the four districts here involved still not reorganized.

On May 15, 1959, the Miller County Board requested the Morgan County Board to release to the Miller County Board for reorganization into Miller County District R-I the four districts in Morgan County here involved. On June 3, 1959, the Morgan County Board declined to accede to that request.

On July 2, 1959, the Miller County Board submitted to the State Board its third plan of reorganization which did not include any Morgan County school districts. There was not at this time any Morgan County plan on file with the State Board.

On May 27, 1960, the Morgan County Board submitted to the State Board a plan of reorganization for Morgan County which called for enlarged District R-III to include the then existing R-II District of Morgan County and said Districts 58, 59, 61 and 62.

On June 3, 1960, the Miller County Board submitted to the State Board a plan of reorganization for Miller County which included Districts 58, 59, 61 and 62. That plan called for Miller County Reorganized School District R-I to include the then existing District R — I with the high school center at Eldon and all of said Districts 58, 59, 61 and 62, except Sections 4, 9 and 16 in Township 40 North, Range 16 West, in Morgan County. (That plan further proposed an enlarged District R-II of Miller County to include the School of the Osage, District C-I, and that part of Morgan County District No. 62 described as Sections 4, 9 and 16 in Township 40 North, Range 16 West, in Morgan County. That feature of the plan is of no material significance to the issues here.)

The State Board examined the plans of reorganization submitted by the Morgan County Board on May 27, 1960, and by the Miller County Board on June 3, 1960, and noted that each of said plans proposed the inclusion of Districts 58, 59, 61 and 62. On June 6, 1960, the State Board advised both the Morgan County Board and the Miller County Board that the proposed plan of reorganization submitted by each of them had been disapproved and recommended that the boards of these counties cooperate by way of mutual discussion to determine whether an agreement could be reached in the best interest of the pupils involved in the aforesaid four districts before resubmission of the plans within the next sixty days. On June 8, 1960, the Miller County Board wrote the Morgan County Board requesting a meeting between the two boards for the purpose of complying with the recommendation of the State Board. On July 9, 1960, the Morgan County Board advised the Miller County Board that the Morgan County Board did not consider that a common problem of reorganization existed between the Morgan County Board and the Miller County Board.

On July 8, 1960, the State Board received from the Morgan County Board a plan of reorganization for Morgan County which was the same plan theretofore submitted by the Morgan County Board on May 27, 1960, and disapproved by the State Board on June 6, 1960. On July 11, 1960, the State Board received from the Miller County Board a plan of reorganization for Miller County which was the same plan as that previously submitted by the Miller County Board on June 3, 1960, and disapproved by the State Board on June 6, 1960. In its letter of transmittal, the Miller County Board appealed to the State Board to determine whether Districts 58, 59, 61 and 62 of Morgan County should be included in the Miller County or Morgan County plan.

On July 11, 1960, the State Board, through its Director of School Reorganization and Transportation, wrote the Morgan County Board advising it of the resubmission of the Miller County Board plan and that said Miller County plan still included Districts 58, 59, 61 and 62. On July 12, 1960, the Morgan County Board wrote the State Board informing it that there was not sufficient time for it to present information in support of its plan at the scheduled meeting of the State Board on July 15, 1960, and requested that no action be taken on either plan on that day, in order to give the Morgan County Board an opportunity to study the Miller County plan and submit information on it.

The meeting of the State Board scheduled for July 15, 1960, was postponed for lack of a quorum. On July 26, 1960, the Morgan County Board wrote the Director of School Reorganization and Transportation of the State Board requesting a “hearing” before the State Board. On August 11, 1960, the State Board advised the Morgan County Board that it was the policy of the State Board not to hold “hearings” on proposed reorganization plans and suggested that the Morgan County Board present whatever additional factual information it desired to the Reviewing Committee of the State Department of Education to be made available to the State Board.

Without complying with this request, the Morgan County Board, on August 16, 1960, filed a petition for a writ of prohibition against the State Board of Education in the Circuit Court of Cole County seeking to prohibit it from proceeding further with consideration of any plan of school reorganization relating to Districts 58, 59, 61 and 62 in Morgan County other than that submitted by the Morgan County Board. On September 26, 1961, the Circuit Court of Cole County, after trial of the issues in that proceeding, entered judgment discharging its priorly issued preliminary rule in prohibition. On October 6, 1961, the Morgan County Board filed its appeal in the Supreme Court of Missouri in Cause No. 49,126, where it is now pending. (Con-cededly, the final adjudication of the issues here presented will be determinative of that appeal.)

, After the decision of the Circuit Court of Cole County denying the writ of prohibition, the State Board proceeded to consider both the Morgan County plan of reorganization and the Miller County plan, each of which, as stated, included Districts 58, 59, 61 and 62, and on October 27, 1961, ruled that Districts 58, 59, 61 and 62, except Sections 4, 9 and 16 in Township 40 North, Range 16 West, in Morgan County, should be placed in the Miller County Proposed District R-I and thereupon approved the Miller County plan and disapproved the Morgan County plan. In arriving at its decision, the State Board found “the territory in the four Morgan County Districts, No. 58, No. 59, No. 61, No. 62, to be more accessible for attendance at school centers in the Miller County proposals and for the past several years the eligible high school pupils have attended the high school centers included in the Miller County proposals.”

On November 16, 1961, the Morgan County Board submitted its plan to the voters and said plan received a majority vote at such election; on November 28, 1961, the Miller County Board submitted its plan to the voters and that plan also received a majority vote at the election. On December 4, 1961, an election was held in Reorganized School District R-III of Morgan County at which election respondents claim to have been elected directors of said Reorganized School District R-III of Morgan County; on December 14, 1961, an election was held in Reorganized School District R-I of Miller County, at which election the relators suing herein as directors claim to have been elected directors of Reorganized School District R-I of Miller County.

There is at this time pending in the Circuit Court of Morgan County a mandamus action seeking to compel the directors of former School District No. 59 of Morgan County to turn over to Reorganized School District R-III of Morgan County all property, records, books and papers belonging to the former Morgan County School District No. 59. There is also pending in the Circuit Court of Morgan County an injunction proceeding seeking to restrain the ■County Treasurer of Morgan County from turning over to Reorganized School District R-III of Morgan County any money now in his hands or which may hereafter come into his hands as County Treasurer by reason of taxes levied and assessed against property in Districts 58, 59, 61 and 62, except Sections 4, 9 and 16 in Township 40 North, Range 16 West, in Morgan County.

Relators contend that the reorganization proceedings and election of respondents as directors of Reorganized School District R-III of Morgan County were illegal and void for the reasons that such proceedings and election were instituted and conducted by the County Board of Education of Morgan County after the State Board had resolved adversely to the Morgan County Board an organizational question existing between the county boards of Miller and Morgan Counties by the approval of the plan of reorganization submitted by the Miller County Board, which plan included the four districts in question (58, 59, 61 and 62) within Reorganized School District R-I of Miller County. That contention is based upon the provisions of § 165-673, RSMo 1959, V.A.M.S. Section 165.-673 requires in material substance that each county board of education conduct a study of each school district in its county and prepare a plan of reorganization; and that the study so made include (a) the assessed tax valuation of the existing and proposed districts; (b) the size, geographical features and boundaries of the proposed districts; (c) statistical information as to the number of pupils and attendance and population statistics; (d) location and condition of school buildings and their accessibility to pupils; (e) locations of roads, highways and natural barriers; (f) high school facilities; and (g) and (h) other factors not here directly material. And directly material is Paragraph (4) of said § 165.673, which provides that said county boards shall “cooperate with boards of adjoining counties in the solution of common organization problems, and submit to the state board of education for final decision any and all organization questions on which the cooperating boards fail to agree.” (Emphasis supplied.) The State Board construes Paragraph (4), above quoted, to vest it with jurisdiction to finally decide disputes such as is here presented and it has invoked and applied the provisions of that paragraph on numerous occasions.

Respondents contend first that, despite the provisions of said section, Reorganized School District R-III of Morgan County was lawfully organized and that the respondent directors are lawfully holding office by virtue of the district having been formed pursuant to law by adoption by the electorate of a plan of reorganization initially filed by the Morgan County Board of Education with the State Board of Education on May 27, 1960, by which filing the Morgan County Board acquired original, prior and exclusive jurisdiction. That contention is based upon the well established principle of law that, when several separate authorities have concurrent jurisdiction of the same subject matter, the one in which proceedings were first commenced has exclusive jurisdiction to end the controversy. Respondents also further contend that even if the doctrine of prior jurisdiction above announced be found not controlling, yet § 165.673(4), relied upon by relators, still is not here applicable and dispositive of the issues here presented, because no common organization problem existed between the Miller and Morgan County Boards within the meaning of § 165.673(4).

These conflicting contentions require that we first determine the meaning and applicability of the above quoted portion of § 165.673(4) to the facts herein shown.

The establishment and maintenance of a public school system is primarily 'a function of the state to be exercised by the legislature, whose powers are not to be fettered if exercised within the limits of the Constitution. 78 C.J.S. Schools and School Districts § 13, pp. 624 et seq.

As early as 1913 (Laws 1913, p. 721, § 3), the legislature recognized that the welfare of the school system might require the consolidation of school districts lying in two or more counties and it established an enabling procedure therefor. In 1931 (Laws 1931, p. 334, § 3), an act provided that in forming proposed enlarged school districts to consist of territory in two or more counties, the county superintendents of the counties affected “shall agree upon the boundaries.” It failed to provide, however, what should be done if the county superintendent of any county containing a portion of such district refused to so agree; and so the law remained as thus limited until the Reorganization Act of 1947. Section 165.673 of the reorganization act obviously undertook to correct that omission in the law by the inclusion of Paragraph (4) above set forth.

In challenging the applicability of that section to the facts here presented, respondents suggest, among other things, that it is not amiss to reflect upon a clause appearing in § 165.170 (which relates solely to common school districts and is not even asserted to be controlling here) declaring “in changing the boundary line between the two established districts, one district shall not encroach upon the other simply for the acquisition of territory.” But respondents do not even attempt to assert that the State Board was actuated in its decision that Districts 58, 59, 61 and 62 should be incorporated in Reorganized School District R-I of Miller County simply for the acquisition of territory. Rather do they say merely that nowhere do the statutes in terms provide that a common organization problem exists when a school district reorganization proposal of one county includes territory in another. That, insofar as we are advised, is true. But that fact, as we see it, establishes nothing. Neither do the statutes say what does constitute a “common organization problem.” It would seem that so many common organization problems may arise out of such a variety of factors or a combination thereof as to have made it unwise, if not impossible, for the legislature to attempt to set forth a definitive enumeration thereof.

One illustrative instance of a common organization problem is found in the case of Glasgow School District No. 60 et al. v. Marshall et al., K.C.Ct. of App., 333 S.W. 2d 547. There the facts, as stated by the court, loe. cit. 549, were: “In April, 1949, the Howard County Board proposed to the State Board that the structure of school districts in that county remain as it had previously been, that no change in district lines be made. This plan was disapproved by the State Board. Not until June 12, 1958, did the county board submit a second plan, which was disapproved by the State Board. However, before such action was taken by the state the Chariton County Board submitted a plan of reorganization affecting territory in Howard as well as in Chariton County, and asked that the Howard County plan be disapproved. Before further action by the State Board, Howard County submitted another revised plan. The State Board disapproved all plans submitted and ordered the Howard County Board to call an election and submit to the voters a new plan of reorganization, prepared by the State Board, providing for R-2, (Glasgow) which includes territory in Howard, Saline and Chariton Counties, and for districts R-l and R-3 comprised of territory wholly within Howard County. The Howard County Board failed to comply with the order of the state board but, instead, ordered an election to be held whereby the voters should approve or disapprove its plan of reorganization.”

It was appellant Howard County’s contention in that case, as it is respondents’ contention here, that notwithstanding the order of the State Board directing the submission of a new plan prepared by it, Howard County’s plan was authorized under the provisions of § 165.677, which in material substance provides that, upon receipt by the state board of the county board’s plan of reorganization, the state board shall examine and approve or disapprove the same and notify the county board of its action; that, if it shall disapprove, the county board shall have sixty days to review the rejected plan and submit a revised plan to the state board for its approval; that, if the revised plan is disapproved, the county board is required to “propose and submit its own plan * * * to the voters.”

It was appellees’ (Glasgow District, et al.) contention that § 165.673(4) was applicable and controlling. The court upheld the latter contention, saying, loe. cit. 550: “This situation clearly calls for action by the State Board, under the provisions of Subparagraph (4) of Section 165.673. The Howard County board was thereby commanded to ‘cooperate with boards of adjoining counties (Chariton and Saline) in the solution of common organization problems, and submit to the state board of education for final decision any and all organization questions on which the cooperating boards fail to agree.’ * * * The case of State ex rel. Corder School Dist. No. R-3 v. Oetting, Mo.App., 245 S.W.2d 157, cited by defendants, does not support defendants’ contention that the Howard County board had acquired prior and exclusive jurisdiction to submit its plan at an election because, in that case, all territory involved lay exclusively within Lafayette County, and no other county board of education had a legal interest in the matter. The provisions of Subsection (4) of Section 165.673, supra, had no application under those facts. * * * There is no conflict between the provisions of Sections 165.673 and 165.677, supra. The former makes provision for final adjudication of differences arising out of common problems of organization between various county boards; the latter provides a method for final solution of differences between a county board and the state board as to questions of reorganization of school districts where the territory lies wholly within one county, where no other county board has a legitimate interest therein The two sections are harmonious and both are essential to a workable and efficient plan for the much needed reorganization of our schools.”

Respondents herein further contend, however, that the phrase last above emphasized makes the Glasgow District case inapplicable here, stating that the above quotation means, in effect, “that where the territory encompassed in the plan lies wholly within one county, then no other county board has a legitimate interest therein.” We think that contention cannot stand; it is directly contrary to the purpose of § 165.673 itself. In express terms, that section requires the boards of adjoining counties to submit to the state board for final decision any and all common organization questions on which they fail to agree. The question is, therefore, do the facts in this case present a common organization question upon which the Miller and Morgan County Boards have failed to agree? If they do, then of course the jurisdiction of the State Board supersedes the jurisdictions of the County Boards as provided by § 165.677.

A brief recapitulation of these facts is necessary. In 1949, the Miller County Board and the State Board approved a plan including the four districts in question (and four others) in Miller R-I, but the voters rejected the plan. Later, in 1953, the Morgan County Board deemed it to the best interest of all eight of the aforesaid un-reorganized common school districts, including Districts 58, 59, 61 and 62, that they be “included in some future reorganization with an area in Miller County, included in the main in District R-I, Miller County, Miss'ou’ri.” District R-I of Miller County thereupon took two of said eight districts; later it took two more, thereby leaving unsettled the problem of Districts 58, 59, 61 and 62. Thereafter, Miller County requested Morgan County to release to it said four districts. Morgan declined. Later, on May 27, 1960, Morgan sought to include said four districts in a plan submitted to the State Board. On June 3, 1960, Miller sought to include said districts in Miller R-I with the high school center at Eldon. The State Board, long since familiar with the situation thus presented, disapproved both plans and suggested that these counties cooperate to the end that an agreement might be reached in the best interest of the- pu'pils involved. Miller County suggested a meeting between the boards; Morgan denied that a common problem existed and resubmitted its plan of May 27, 1960; Miller resubmitted its plan of June 3, 1960, and appealed to the State Board to determine where said districts should go. Morgan requested that 'no action be taken until it had an opportunity to study the Miller County plan. That request was followed by a request for an oral “hearing”, which the State Board denied on grounds of a priorly established policy, but again suggested that it transmit whatever additional factual information it desired. Instead, Morgan County sought prohibition.

Clearly, the State Board believed the facts herein presented constituted a common organization' problem requiring it to make the final decision referred to in .§ 165.673(4).' In view of the facts here shown, it would seem presumptuous on the part of this court to hold that a common organization problem did not confront and had not confronted the Miller and Morgan County Boards .for a number of years before the jurisdiction of the State Board was invoked by the Miller County Board in accordance with the provisions of § 165.-673(4). To the contrary, we are of the-opinion that the inability of these boards to agree upon which of the proposed reorganized districts could best serve the welfare of the pupils in the four unreorganized districts in question presented an organization problem common to both boards; that no solution existed other than to submit the problem to the State Board for final decision; and that § 165.673(4) expressly vested the State Board with exclusive jurisdiction to make that decision.

The State Board found that the territory in the four districts in Morgan County, 58, 59, 61 and 62, was more accessible for attendance at school centers in the Miller County proposal and that for the past several years the eligible high school pupils had attended the high school centers in the Miller County proposal. Thus, the State Board decided, in effect, that the best interest of the pupils residing in these four districts required that said districts be incorporated in said Reorganized School District R-I of Miller County. Consequently, when the voters of Reorganized School District R-I of Miller County approved the plan approved by the State Board, said district became and "is now lawfully organized; and it follows, of course, that Reorganized School District R-III is illegally organized and that respondents are unlawfully usurping the powers of directors over the districts now lawfully incorporated in Reorganized School District R-I of Miller County.

Respondents are ordered ousted of the right of exercise of any and all jurisdiction over any portion of Reorganized School District R-I of Miller County.

      . To which, revision all statutory references are made unless otherwise indicated.

      . Emphasis supplied by this court for further reference.