author: TOWNSEND, Commissioner.

text:
    RESOLUTE INSURANCE COMPANY, a Corporation, Wilbur Haynes and Theta C. Haynes, Plaintiffs-Respondents, v. MORGAN DRIVE-AWAY, INC., a Corporation, Defendant-Appellant.
    No. 32192.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 23, 1966.
    Application to Transfer Denied July 11, 1966.

      Orville C. Winchell, Lebanon, for defendant-appellant.
    John L. Woodward, Paul L. Bell, Steel-ville, for plaintiffs-respondents.
   TOWNSEND, Commissioner.

Action to recover damages for loss of a house trailer and contents destroyed by fire while in possession of defendant carrier. From an adverse judgment defendant appeals.

The plaintiffs Haynes delivered their house trailer into the possession of the agent of defendant Morgan Drive-Away, Inc., at Tucson, Arizona, under an oral arrangement for the towing of the trailer to Cherryville, Missouri. The arrangement was arrived at after the agent had consulted his rate hook and had informed plaintiffs of the charge for such towage. There was no documentation of the relationship between the parties; no bill of lading or receipt was issued to the Haynes by Morgan. On June 8, 1961, while being towed, the trailer burned at Groom, Texas; the remains were towed to Amarillo, Texas, where the best bid for same was $225. Informed of the casualty the Haynes journeyed to Groom, Texas, where they viewed the trailer and its contents, and at Amarillo they removed those items which they regarded as salvageable and returned to Missouri with them. At Amarillo they compiled a list of the items of personalty which had been in the trailer and made an estimate of the loss thereon.

The trailer had been insured with the plaintiff Resolute Insurance Company which in the end paid the Haynes $3700 by draft made payable to the Haynes and to a mortgagee in Denver. The insurance company maintains the present action as sub-rogee. The Haynes sue as owners of the uninsured personal property lost or damaged in the trailer. Through a series of procedural misadventures and change of venue the case came to be tried to the court in the Circuit Court of Franklin County, where judgment was entered in favor of Resolute Insurance Company for $3475 and in favor of the Haynes for $3780.

The defendant is one of the participating carriers which have filed through Mobile Housing Carriers Conference, Inc., as agent, an approved tariff with the Interstate Commerce Commission, designated as Freight Tariff No. 1-E, effective March 25, 1960, and a supplement thereto, effective March 13, 1961. Among other defences, the defendant has relied upon the terms of such tariff.

Since the Congress has long since chosen to legislate comprehensively in the field of interstate transportation, the question of defendant’s liability rests primarily upon federal law.

The Interstate Commerce Act as amended requires a carrier receiving goods for interstate transportation to issue a receipt or bill of lading therefor. 49 U.S.C.A. § 20, par. (11). The tariff filed by the carriers conference and approved by the Interstate Commerce Commission contains not only the rates which may be charged by a carrier but also a variety of terms relating to routes, conditions of carriage and delivery, repairs, carrier’s liability, and other incidents of the relationship of shipper and the carrier. It includes also a Uniform Straight Bill of Lading form, which it is readily understood has been approved by the Commission as part of the tariff and so may be used by the carrier.

The dominance of the approved tariff in the relationship of shipper and carrier is well illustrated by the holding of a federal court more than forty years ago: “It is well settled that * * * the rules and regulations, as well as the rates, filed by the carrier with the Interstate Commerce Commission, enter into and form part of all contracts of shipment, whether the shipper has notice of them or not.” Hartness v. Iberia & V. R. Co., D.C., 297 F. 622. And so where the carrier issues the uniform bill of lading as found in the tariff its terms are applicable and form part of the contract of carriage. “Pursuant to Congressional authority, the Interstate Commerce Commission has prescribed uniform forms of bills of lading * * *. The construction of the clauses of a bill of lading, adopted by the Commission and prescribed by Congress for interstate rail shipments, presents a federal question * * *. Since the clauses of the uniform bill of lading govern the rights of the parties to an interstate shipment and are prescribed by Congress and the Commission in the exercise of the commerce power, they have the force of federal law * * Illinois Steel Co. v. B. & O. R. Co., 320 U.S. 508, 64 S.Ct. 322, 88 L.Ed. 259.

Pertinent to the present case is the question of whether the terms of the authorized uniform bill of lading govern the rights and duties of the parties where no bill of lading has been issued. Here the bill of lading form found in the tariff specifies that “as a condition precedent to recovery, claims must be filed with the receiving or delivering carrier * * * within nine months after delivery of the property * * * or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed * Defendant maintains that plaintiffs filed no claim with defendant within the prescribed nine months period. Plaintiffs contend that the stated condition precedent has no significance in the present case since no bill of lading was issued by defendant.

It has been widely held that where no bill of lading has been issued the uniform bill prescribed by the Commission will be implied. Thomas Foods, Inc. v. Penn. R. Co., 112 Ohio App. 76, 168 N.E.2d 612; Hubbard Grocery Co. v. Payne, 94 W.Va. 273, 118 S.E. 152. “Where no bill of lading is actually issued, all of the provisions of the uniform bill of lading, prescribed by the Commission and filed as a tariff, will apply to the shipper and carrier in full force, just as though a bill of lading were actually issued.” Atlantic Coast Line R. Co. v. Clinchfield Fuel Co., D.C., 94 F.Supp. 992. Where the carrier brought an action against the shipper for freight charges not paid by the deliveree, it was held that the terms of the bill of lading form imposing a duty upon the shipper to pay such freight charges unless the shipper noted on the bill of fading that the goods were not to be delivered unless freight was paid by consignee were held governing, although no bill of lading was issued and although the shipper otherwise directed “Freight Collect.” Western Maryland Ry. Co. v. Cross, 96 W.Va. 666, 123 S.E. 572. In Berg v. Schreiber, 405 Ill. 528, 92 N.E.2d 88, a truck transportation case, the filed tariff included the uniform bill of lading carrying the identical condition precedent that is present in the instant case. The Supreme Court of Illinois treated that condition precedent (filing claim within ninety days) as governing the relationship of the parties although no bill of lading had been issued and denied shipper’s recovery because of failure to satisfy the condition precedent.

We regard the tariff form of the bill of lading as a part of the contract in the present case, but we find the condition precedent specified in the bill of lading form to have been satisfied. Plaintiffs Haynes did file claim with defendant within nine months after the trailer should have been delivered. The trial court did so find and we think properly. The evidence relating to making claim upon the defendant was as follows: Plaintiff introduced a carbon copy of a letter in this form:

“August 4, 1961
Mr. Phil Leamen
% Morgan Drive-away
Elkhart, Indiana
Dear Mr. Leamen,
In Nov 1960 Wilbur R. Hynes and Thetha C. Hynes purchased a house-trailer thru Marks Trailer Sales, Tucson, Arizona.
This trailer burned in Groom, Texas on June 8, 1961. Mr. and Mrs. Hynes had employed Morgan Drive-away to move the house-trailer from Tucson, Texas to Cherryville, Missouri. This was a total loss.
I understand you are selfinsured. Personal property loss $4400. —and the trailer loss would be around $4000.
Please let me hear from you soon, I want to get it settled.
Very truly yours,
Earl E. Roberts
EER/Ga”

This carbon copy was not signed, but the typed name appearing at the end thereof is that of an attorney who represented the Haynes shortly after the loss occurred. There is no evidence indicating when or where this carbon copy was found. The former secretary of Mr. Earl E. Roberts (who was deceased at the time of the trial) testified that on the purported date of such carbon copy she was on vacation; that she had never seen the original of such letter; that the original was not in Mr. Roberts’ office when she returned from her vacation; and that she had no knowledge of what happened to the original letter. She testified that the secretary who worked for Mr. Roberts in her absence was named Heidi Garms and that her tenure in that job was about one week.

In the pre-trial period plaintiffs filed their Request for Admissions and among other things asked for the following admissions :

“1. That Phil Leaman was either an agent, officer, employee or representative of the defendant Morgan Drive-Away, Inc., at the time he received a letter written by Earl E. Roberts, Attorney at Law, Steelville, Missouri, which letter was on the stationery of Earl E. Roberts, Attorney at Law, and bore the letterhead in that fashion and was addressed to Mr. Phil Leaman, % Morgan Drive-Away, Elkhart, Indiana, a copy of said letter is attached to this request.
2. That said letter was delivered to Mr. Phil Leaman by the U. S. Postoffice Department and it was in his possession prior to March 8, 1962.”

To these Requests for Admissions the fob lowing answers were made:

“1(a) There is no one employed by the company by the name of Phil Leaman, either as agent, officer, employee or representative of defendant Morgan Drive away.
(b) A letter was received by Morgan Drive away which corresponds to the photocopy attached to the Request for Admissions.
2. The undersigned does not know of his own knowledge that said letter was delivered by the United States Post-office Department on or before March 8, 1962.”

These answers were sworn to by Mr. Bill R. Privitt, secretary of the defendant Morgan Drive-Away, Inc. The copy of a letter attached to the Request for Admissions was clearly identified as being the same in content as the carbon copy introduced as an exhibit. When the carbon copy was offered in evidence, defence counsel objected and among other matters stated: “It is already admitted by admissions anyhow. The same item he has marked as an exhibit.” The trial judge: “Is that the same letter ?” Plaintiffs’ counsel: “It is the same letter, Your Honor.” The Court: “Yes, I think the admission does cover that.”

The only witness called by defendant was Mr. Phil Lehman, who testified that he had been employed by defendant for about six years, that in August 1961, “I was like a general office manager and I also had charge of the claims department” and that in the six years he had been with defendant there was no one employed by defendant by the name of Phil Leaman. Thereafter he identified the Mobile Housing Carriers Conference tariff and the supplement, entered as exhibits, and testified that as manager of defendant and as claims manager he had never received written demand either from the Haynes or from the Resolute Insurance Company with respect to the trailer loss. Such was the full extent of his testimony.

The March 8, 1962 date specified in the Request for Admissions was adopted by plaintiffs presumably because that day marked the expiration of a nine months period after the loss of the trailer. While there is no direct evidence as to the precise time of the receipt of Mr. Roberts’ letter by defendant, we think the clearly established facts justify the inference that it was received before that date. The fact that defendant has in possession a letter dated August 4, 1961, with content the same as that of the exhibit, shows that that communication was delivered to defendant by some means of transmission; given the various modern modes of communication the only reasonable conclusion that can be reached is that Mr. Roberts mailed the letter near the date of same and that in the ordinary course of events it reached the defendant in Elkhart, Indiana, shortly thereafter. As between all parties hereto the defendant is in the best position to determine when — or between what dates — the defendant received Mr. Roberts’ letter. It is worth noting that defendant failed to obey the Court’s order directing defendant to specifically admit, deny or state under oath, that the means of securing information or knowledge necessary to completely answer plaintiffs’ Request for Admissions, paragraphs 2, 3, 4 and 5, were not reasonably within its power. We need to contrast no further the testimony of Mr. Lehman that he had never received a demand from plaintiffs with the admission of the Company that a letter of demand addressed to Phil Leaman, % Morgan Drive-Away, is in the possession of the Company. In this connection we may note also that when Mrs. Haynes was asked by defence counsel: “ * * * did you file any claim with Morgan Drive-Away yourself?” She answered: “No, when they wouldn’t — I couldn’t get any response from them, why, we put it in the hands of the lawyer then. I told Mr. Lehman we would do that then, when I finally got in contact with him by phone.”

No question was raised as to the fact of Mr. Roberts’ representation of the Haynes. The letter written by him on their behalf and on his letterhead as an attorney was quite sufficient to apprise defendant that they were making a claim against defendant based on the contract of carriage. No particular form of demand is necessary. Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948. “The written notice which is to be considered in a ‘practical way’ is sufficient if a carrier cannot draw any inference from it other than that a claim for damages was contemplated, even if the writing does not contain a formal demand for damages.” Delaware, L. & W. R. Co. v. United States, D.C., 123 F.Supp. 579. The letter does not bear the defect of failing to state an amount of claim, a defect which caused the court in Berg v. Schreiber, supra, to hold that the condition precedent had not been satisfied. No significance can be attached to the testimony of each of the Haynes that they made no written demand upon defendant; they engaged Mr. Roberts to represent them and consequently his communication to Morgan Drive-Away is their communication.

The suppplement to Freight Tariff No. 1-E provides inter alia that “carrier shall not be liable for damage to personal effects of any kind unless same shall have been packed and secured by the carrier * As there is no evidence that the carrier packed any of the personal effects of the Haynes it becomes important to consider the applicability of this exclusionary term since that part of the judgment in favor of the Haynes is for the loss of and damage to personalty other than the trailer.

By the terms of Title 49, § 20, par. (11), U.S.C.A., any initial or delivering carrier is made liable for loss, damage or injury to property received for transport caused by it or by any connecting carrier. With relation thereto, any limitation of liability or of the amount of recovery, found ín any receipt, bill of lading, contract, rule, regulation, or in any tariff filed with the Commission, is declared to be unlawful and void. Faced with such a statutory fiat, no carrier can contract itself out of liability for its own or a connecting carrier’s negligence ; nor can it achieve such an immunity or limitation of its liability by embodying provision therefor in any tariff. One qualification upon the statutory prohibition is found in this section 20, par. (11), not for the purpose of excluding the liability imposed by the paragraph but for the purpose of limiting the amount of a shipper’s recovery. If the Commission authorizes a carrier to establish variant rates for the carriage of property (other than live stock) dependent upon the value declared by the shipper or agreed to in writing then the declaration or agreement has the sole effect of limiting a shipper’s recovery to the amount so declared or agreed. Such provision has no effect upon the substantive question of liability. Where different rates for carriage are established dependent upon the value so stated, the shipper has a choice of paying a lower rate and having any possible recovery limited to a contractual stated amount or, by declaring a value greater than such stated amount, of paying a higher rate and having a possible recovery limited only by the higher declared value.

A presumption of carrier’s negligence arises from proof that goods were delivered to the carrier in good condition and were either delivered by the carrier in damaged condition or were never delivered to the consignee. “[T]he presumption arose that they had been lost by reason of the negligence of the carrier or its agents.” Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516. Under such circumstances negligence of the carrier is presumed as a matter of law and need not be submitted as an issue of fact. T. & N. O. R. Co. v. Dingfelder, Tex.Civ.App., 114 S.W.2d 666 (affirmed 134 Tex. 156, 133 S.W.2d 967); Panhandle & S. F. Ry. Co. v. Andrews, Tex.Civ.App., 278 S.W. 478; T. & P. Ry. Co. v. Empacadora de Ciudad Juarez, Tex.Civ.App., 309 S.W.2d 926; Seaboard A. L. R. Co. v. Henry Chanin Corp., 84 Ga.App. 442, 66 S.E.2d 113; Ostroff v. Hustis, 80 N.H. 141, 114 A. 27; Kirchner v. N. Y. Central System, 87 Ohio App. 165, 94 N.E.2d 283; Hamilton Foods, Inc. v. A. T. & S. F. Ry. Co., D.C., 83 F.Supp. 478 (affirmed 9 Cir., 173 F.2d 573); Smith v. Ry. Express Agency, D.C., 110 F.Supp. 911, affirmed 6 Cir., 212 F.2d 47. The presumption is rebuttable; it casts upon the carrier the burden of going forward with evidence to show that it was free of negligence, Smith v. Ry. Express Agency, supra, or as sometimes stated it shifts to the carrier the burden of showing by preponderance of the evidence that the damaged condition was not the result of negligence. Ry. Express Agency v. Shull, 224 Ark. 476, 275 S.W.2d 882.

In the present case defendant offered no evidence as to the circumstances surrounding the loss of the trailer and its contents; no attempt was made to explain the cause of the fire. Its only witness testified as previously outlined. Therefore the unrebutted, unqualified presumption of the carrier’s negligence prevails. From this it follows that the tariff provision attempting to eliminate any responsibility for damage to personal effects unless “packed and secured by the carrier” cannot stand, for by the very words of the above recited Section 20(11) any such limitation of liability is made unlawful and void. The defendant took upon itself the transport not only of the trailer but also of its contents; as a condition of entering into the arrangement with the Haynes it even required the removal of certain items of personal property in order to reduce the weight. It agreed with the Haynes to seal certain closets and drawers containing personal effects. It assumed the position of a carrier, not only of the trailer, but of the contents thereof. Accordingly the tariff limitation in question is a nullity.

In its motion for new trial the appellant asserted that the Court lacked jurisdiction. Up to that point, the record is completely devoid of any such suggestion by appellant. Appellant’s contention is based upon the following sequence of events : The case came on to be tried in the Circuit Court of Crawford County before a jury. Mr. and Mrs. Haynes testified. Thereupon there was a conference between the Court and counsel in chambers, after which the judge returned to the bench and addressed the jury: “Gentlemen of the jury, in just a few moments the attorney for plaintiffs is coming back in here and he, in effect, will ask us to take a non suit in this case at this time, which, in effect, will be the end as far as this jury is concerned * * *. At some future time, he, no doubt, will re-file his case * * * certain evidence that it is necessary for the plaintiffs to introduce at this trial is not available to them at this time, and for that reason it cannot be offered in evidence; and for that reason alone he is asking, in effect, that the case be continued to some other time, at which time we will present it to some other jury.” Thereupon the jury was discharged.

Under the same date, May 28, 1963, the Court entered its order as follows:

“Both sides announced ready for trial. Jury sworn and plaintiffs gave their evidence in part. It appearing that certain evidence plaintiffs needed is in the possession of defendant and not available to plaintiffs at this time. Jury discharged on plaintiffs’ request. All costs incident to jury trial are taxed against plaintiffs. Cause passed for setting to a later date to be agreed upon.”

From this record appellant argues that the net effect of the whole proceeding on May 28, 1963 was that respondents thereby took a non-suit and accordingly that thereafter there was no pending case in the files of the Court. We do not believe that the inadvertent use of the word “nonsuit” in the Court’s address to the jury was intended to have any such effect, particularly in view of the fact that in the same address to the jury the Court referred to the case being continued to some other time. In any event, appellant’s argument ignores the fact that the Court speaks through its record and the order of the Court states that the case is passed for setting at a later date. The authorities cited by the appellant are not apposite. Appellant’s argument in general runs in terms of a judgment of discontinuance or a judgment of dismissal. The very words of the Court’s order here clearly indicate that that order was neither. There was nothing to show that the Court intended to dismiss the case or to discontinue it entirely. The whole proceeding here was in the nature of a mistrial and not of a non-suit. One month after the cause was “passed for setting to a later date” plaintiffs filed their Request for Admissions and in response thereto appellant (defendant) filed its motion to dismiss, strike and disregard the Request for Admissions. Nine months after the cause was passed for setting to a later date defendant filed its application for a change of judge, which was sustained, and ten days after that the Honorable Joseph T. Tate was temporarily transferred from his circuit to the Forty-Second Judicial Circuit to hear the case. In the meantime the plaintiffs had filed their second amended petition, to which defendant-appellant filed its answer in due course. Counsel for the parties entered into a stipulation that any objections to further motions or pleadings be submitted to Judge Tate on memoranda without oral argument in order to avoid further pre-trial conferences. Plaintiffs filed further Requests for Admissions, to which defendant-appellant answered. The case then came on for trial before Judge Tate in the Circuit Court of Franklin County, with preliminary stipulations by the parties that the venue be changed from Crawford County to Franklin County and that the original files be transferred from Crawford County Circuit Court to Franklin County Circuit Court. As previously stated, the record shows no objection by the appellant to the continuance of the case. We are unable to discern any prejudice to the appellant. In any event defendant made no timely objection below, participated in all proceedings subsequent to May 28, 1-963 and went to trial voluntarily. Thereby it waived the point now raised.

Appellant’s final point is that the method utilized by plaintiffs for proof of damages was inaccurate and contrary to law. Appellant would characterize plaintiffs’ testimony as guesswork.

It is apparent that Mrs. Haynes did not fully understand the questions put to her by counsel relating to values before and after the fire and hence her answers were confusing. We find no such defect in the testimony of Mr. Haynes. At Amarillo plaintiffs prepared a list of the items that were in the trailer. Using that list to refresh recollection, Mr. Haynes testified as to the value of items completely destroyed; likewise he gave testimony as to items which were salvageable, stating values before and values after. In many instances the items in both categories were new and only recently purchased. No rebuttal evidence was tendered. The Court carefully followed the testimony item by item and laboriously compiled and considered the losses in values so stated by Mr. Haynes and found the damages of plaintiffs Haynes to be $3780.

The finding of values is not always a matter susceptible of precise mathematical determination. Particularly where used personalty is the subject matter, application of the rule of the market place cannot be had with great certainty. See Walton v. A.B.C. Fireproof Whse. Co., 233 Mo.App. 693, 124 S.W.2d 584, 591. In general, “[testimony as to the value of property is opinion evidence and is more or less advisory.” Lee v. Allen, Mo.App., 120 S.W.2d 172, 174.

No doubt can be had as to the competency of Mr. Haynes’ testimony. Without further qualification, the owner of property may testify to its reasonable value, whether the subject-matter be automobiles, State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68; Finn v. Indemnity Co., Mo.App., 297 S.W. 175, household goods, Baird v. Ellsworth Realty Co., Mo.App., 265 S.W.2d 770; Taylor v. St. Louis & H. R. Co., Mo.App., 256 S.W. 499, or heirlooms and keepsakes, State ex rel. Terry v. Ace Storage and Moving Co., Mo.App., 135 S.W.2d 363, and the jury “determines the weight and value of such testimony.” State ex rel. Spears v. Mc-Cullen, supra. Here the trial judge sat as the trier of fact and the evaluation of the testimony was his function. We find no error in this regard.

The judgment should be affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C, is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.

      . One qualification by the Supreme Court itself upon the generality of the last statement (but not relevant here) is found where the shipper is given no opportunity to make a choice between variant freight rates in connection with the limitations on the amount of liability, noted hereinafter. N. Y., N. H., & H. R. Co. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500. And see Vandenbergh v. Allied Van Lines, Ltd., 137 Mont. 327, 351 P.2d 537.

      . It has even been held that where plaintiff’s pleadings make specifications of negligent conduct and the evidence does not sustain such specifications, plaintiff may still fall back on the presumption. T. & N. O. R. Co. v. Willis, Tex.Civ.App., 94 S.W.2d 235 (and see T. & P. Ry. Co. v. Empacadora, etc., supra). Contra, Wentworth Fruit Growers’ Assn. v. Am. Ry. Express Company, 222 Mo.App. 1189, 1 S.W.2d 1028; Davis v. Rivers, 103 Okl. 198, 229 P. 571. Cf. State ex rel. A. T. & S. F. Ry. Co. v. Trimble, 302 Mo. 8, 257 S.W. 104.


source: Caselaw Access Project

author: DOERNER, Commissioner.

license: Public Domain

text:
    CONTOUR CHAIR LOUNGE COMPANY, Inc., a Corporation and Contour Sales, Inc., a Corporation, Plalntiffs-Respondents, v. ALJEAN FURNITURE MANUFACTURING COMPANY, a Corporation, Joseph F. Laskowitz, Henry Koerner, Althea Koerner, and William Neiner, Defendants-Appellants.
    No. 32158.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 23, 1966.
    Application to Transfer Denied July 11, 1966.

      Suelthaus & Krueger, Louis M. Kohn, St. Louis, for defendants-appellants.
    Dubail, Judge & Kilker, William C. Maier, St. Louis, for plaintiffs-respondents.
   DOERNER, Commissioner.

Defendants appeal from a judgment and decree enjoining them from competing with plaintiffs, in violation of a contract containing a covenant not to compete executed only by defendant Joseph F. Laskowitz.

Laskowitz is the designer and inventor of a distinctive type of chair with a movable one-piece top, shaped to fit the body, which moves in an arc on a stationary base. He caused the plaintiff Contour Chair Lounge Company, Inc., to be incorporated in 1947 to manufacture the chair, and the co-plaintiff Contour Sales, Inc., to be formed to sell the same, and was president of the former company and vice-president of the latter. Six design patents on the chair were granted to Laskowitz by the Commissioner of Patents, the principal one of which was No. 157,269, issued on February 14, 1950, for a term of 14 years. Las-kowitz granted plaintiff Contour Chair Lounge Company, Inc. the exclusive right to manufacture and sell the contour-type chair, in return for royalties to be paid to him. The evidence indicates that Lasko-witz was an officer of the plaintiff companies until 1955, when, presumably, he sold his stock in them. Thereafter he continued to receive royalties from plaintiff Contour Chair, and for the five years preceding December 17, 1958 was paid $66,804.50.

On that day, December 17, 1958, Lasko-witz and plaintiff Contour Chair entered into a written agreement whereby Laskowitz sold and assigned his patents to Contour Chair in return for the sum of $180,000. The basic patent was then due to expire in slightly more than 5 years, on February 14, 1964. As part of the consideration Las-kowitz agreed that for a period of 10 years from December 17, 1958, he would not:

“(a) Engage in or enter into, directly or indirectly, any business, enterprise or undertaking in competition with the First Party or the Contour Sales, Inc., a Missouri corporation, or any franchise or other dealer thereof; except as to conventional living room furniture, chairs convertible from a sitting to a reclining position, bed room suites, or kitchen, dinette or dining room furniture.
“(b) Directly or indirectly enter into, finance, invest in, or otherwise engage in any manufacture, development, research, sales or other business activity in the United States, its possessions or Canada relating to or involving furniture or any other product or component of a product of the same general nature as those produced or sold by or for First Party; except as to conventional living room furniture, chairs convertible from a sitting to a reclining position, bed room suites, or kitchen, dinette or dining room furniture.
“(c) Sell, license, or otherwise transfer any mechanical or design patent now owned by or hereafter obtained by Second Party covering furniture or any other product or component of a product of the same general nature as those produced or sold by or for First Party; except as to conventional living room furniture, chairs convertible from a sitting to a reclining position, bed room suites, or kitchen, dinette or dining room furniture.
“(d) Use, attempt to use, directly or indirectly the names ‘Contour’, ‘Contour Chair’, ‘Contour Chair Lounge’, or any similar names in any form or relationship. In this connection Second Party acknowledges full title and ownership of said names to be in First Party.”

On November 6, 1958, shortly before the execution of the foregoing agreement, Las-kowitz and defendants Henry Koerner and William Neiner, his sons-in-law, executed articles of incorporation for defendant Al-jean Furniture Manufacturing Company, the certificate for which was issued by the Secretary of State the following day. Las-kowitz subscribed for 3 shares and Koerner and Neiner for 1 each, all at $100 per share. Laskowitz was elected president, Neiner vice-president, and Koerner secretary-treasurer, and the three composed the board of directors. Shortly thereafter, on December 11, 1958, pursuant to the board’s action, Laskowitz sold $10,000 worth of machinery, equipment and raw materials to defendant Aljean Furniture in exchange for 100 shares of the company’s stock. Within a short time he also loaned Aljean Furniture $13,943.11 in cash, and on October 19, 1959, this indebtedness was evidenced by a promissory note for that sum executed by Neiner as vice-president on behalf of the Aljean Furniture, payable on demand. Laskowitz, in addition, owns the real estate occupied by Aljean Furniture, and the evidence indicates that little, if any, rent was paid or an obligation therefor recognized prior to 1964.

According to the minute book of defendant Aljean, introduced in evidence, Lasko-witz tendered his written resignation as the president and a director of that company, dated March 22, 1963. On or about the same day Laskowitz transferred 51½ of his 103 shares in Aljean to his daughter, Althea Koerner, and her husband, Henry Koerner, jointly; and his remaining 51½ shares jointly, to his other daughter, Jeanne Neiner, and her husband, William Neiner. He also assigned his note from Aljean Furniture to his daughters, jointly. On the following day, according to the minute book, the board of directors of Aljean Furniture accepted Laskowitz’s resignations and elected Henry Koerner president, William Neiner secretary, and Althea Koerner a director.

As stated, the principal design patent issued to Laskowitz and assigned by him to plaintiff Contour Chair, under which plaintiffs made and sold their contour chair, expired on February 14, 1964. Shortly thereafter, and as early as March 11, 1964, defendant Aljean Furniture began to advertise and offer for sale a contour-type chair, under the name “Conforming” or “Conform” chair. There can be no dispute about the fact that to all appearances the two chairs are substantially alike. Both Las-kowitz and Koerner readily admitted that to the average person the Conform Chair of Aljean Furniture would appear similar to the plaintiffs’ Contour chair. The only marked difference, not apparent to the eye, to judge from the photographs introduced in evidence, is that the mechanism in the Conform Chair of Aljean Furniture operates on a belt and buckle device whereas plaintiffs’ Contour Chair operates on a ratchet system. According to the transcript, plaintiffs filed their original petition herein on January 2, 1964, prior to the expiration of the design patent. It is not included in the record before us, but in the amended petition on which the case was tried, filed on June 8, 1964, plaintiffs alleged that Laskowitz entered into a conspiracy with Henry Koerner, Althea Koer-ner and William Neiner to breach Lasko-witz’s contract of December 17, 1958 with plaintiff Contour Chair; and that the defendants, to accomplish said consiracy, had organized Aljean Furniture Manufacturing Company for the purpose of having it engage in the activity prohibited of Lasko-witz by his agreement; that the individual defendants had caused Aljean Furniture, and had themselves, engaged in the research, development, manufacture and sale of a product similar to plaintiffs’ product, in violation of the agreement made by Las-kowitz; that defendants’ chair was advertised and offered for sale under the name “Conform Lounge Chair,” which was so similar to the name of plaintiffs’ chair, “Contour Lounge Chair,” that it was calculated to and would deceive, mislead and confuse the public and plaintiffs’ customers; that unless defendants were restrained plaintiff would suffer permanent damage to their business; and that the amount of such damage could not be determined, and plaintiffs had no adequate remedy at law. Plaintiffs prayed for both a temporary and permanent injunction restraining defendants from engaging in the activities described.

The trial court granted plaintiffs a temporary injunction, and thereafter a permanent one. In its findings of fact and conclusions of law the trial court found, in effect, that Laskowitz had entered into the contract of December 17, 1958 with plaintiff Contour Chair containing the covenant not to compete for a period of 10 years; that defendants Aljean Furniture, Henry Koerner, Althea Koerner and William Neiner knew of the restrictive covenant; that they nevertheless conspired with Las-kowitz and with each other to violate the covenant, or acted as his agent in doing so; that both before and after the transfer by Laskowitz of his stock in Aljean Furniture the defendants had engaged in the research, development, manufacture and sale of a chair that is similar to the distinctive chair manufactured by plaintiff Contour Chair; that they had used the name “Conforming Chair” for their chair, which name was similar to and calculated to deceive the public and plaintiffs’ customers, and to induce the erroneous belief that the defendant’s chair is the same as plaintiffs’; that for carrying out their conspiracy with Las-kowitz or performing the acts for him the defendant Aljean Furniture and the individual defendants became and were jointly and severally responsible and liable for the breach and violation of said contract; and that plaintiffs were without an adequate remedy at law. By its judgment and decree the court enjoined all of the defendants, their agents, employees, and all persons acting in concert with them from manufacturing, selling or offering for sale the Aljean Furniture Conforming Chair or any chair similar to that of plaintiffs’ Contour Chair, until December 18, 1968. The defendants were also enjoined for the same period from using the words “Conform” and “Conforming” or any other word similar to “Contour” in connection with furniture.

In his separate answer Laskowitz attacked the validity of his contract of December 17, 1958, as being unreasonable as to area and time, and therefore void, but in defendants’ joint brief it is expressly stated that he did not press that defense below and does not do so here. That issue, therefore, is not before us. Nor do the defendants contend that since February 17, 1964, Aljean Furniture has not engaged in direct competition with plaintiffs in the manufacture and sale of a chair substantially similar to the distinctive chair made and sold by plaintiffs. What the defendants do maintain is that inasmuch as Al-jean Furniture, Koerner, Althea Koerner and Neiner were not parties to the agreement of December 17, 1958, they cannot properly be enjoined from engaging in such business competition with plaintiffs; that the evidence was insufficient to support the finding that Laskowitz breached his contract with plaintiff Contour Chair; that Aljean Furniture, Koerner, Althea Koerner and Neiner cannot be absolutely enjoined from using the names “Conform” and “Conforming”; and that since Laskowitz divested himself of all interest in Aljean Furniture, and it is not his alter ego, the court erred in enjoining that company.

It may be the general rule, as stated in 94 A.L.R. 341, 345, and as quoted in defendants’ brief, that:

“The majority, and the better considered, of the cases, support the proposition that one who is in no sense a party to a covenant not to engage in a competing business cannot properly be enjoined from engaging in such business.”

As do many general rules, however, this rule has its corollaries or exceptions. In the next succeeding paragraph of the same authority, but not quoted in defendants’ brief, it is also stated:

“A stranger to the covenant may, however, properly be enjoined from aiding the covenantor in violating his covenant or receiving any benefit therefrom. So, a stranger to the covenant may well be enjoined from, in conjunction with the covenantor, or with his assistance, conducting a business in competition with the covenantee. * * * ”

This is precisely the theory upon which plaintiffs based their claim for relief. As pleaded in their petition their claim was, in brief, that Koerner, Althea Koerner, Nei-ner and Aljean Furniture entered into a conspiracy with Laskowitz to violate and breach Laskowitz’s agreement of December 17, 1958, with plaintiff Contour Chair, and to injure and destroy plaintiffs’ business, by developing, manufacturing, selling and offering for sale, under a deceptively similar name, a chair substantially identical to plaintiffs’ Contour Chair; and that pursuant to their agreement they combined and j oined with him in the carrying out and execution of the conspiracy, to the actual and impending damage to plaintiffs’ trade and business.

A civil conspiracy is an agreement or understanding between two or more persons to do an unlawful act, or to use unlawful means to do an act which is lawful. Royster v. Baker, Mo., 365 S.W.2d 496; Rosen v. Alside, Inc., Mo., 248 S.W.2d 638; Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 S.W.2d 1083. The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy or concerted design resulting in damage to plaintiff. Royster v. Baker, supra; Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570; Medich v. Stippec, 335 Mo. 796, 73 S.W.2d 998. While no Missouri case is precisely similar to the instant one on all the facts, the principle has been well established that a combination for the purpose of causing a breach of contract by one of the parties thereto and resulting damage to the other is an unlawful conspiracy. As was said in Rosen v. Alside, Inc., Mo., 248 S.W.2d 638, 643:

“ * * * A combination for the purpose of causing a breach of contract has been held to be an unlawful conspiracy. A person who by conspiring with another or by collusive agreement with him assists him to violate his contract with a third person and to obtain the benefit of that contract for himself commits an actionable wrong. Falstaff Brewing Corporation v. Iowa Fruit & Produce Co., 8 Cir., 112 F.2d 101; Sorenson v. Chevrolet Motor Co., 171 Minn. 260, 214 N.W. 754, and Annotation, 84 A.L.R. 98. * * ”

And in the earlier case of Nokol Co. of Missouri v. Becker, 318 Mo. 292, 300 S.W. 1108, 1113, it was stated:

“While counsel for respective parties herein have not cited, and we have been unable to find, any ruling of this court, or of our several Courts of Appeals, upon the precise question now before us, the well-reasoned utterances of the courts of other jurisdictions clearly and positively uphold the right of a complainant in equity to enforce the negative covenants of a contract by restraining or enjoining the opposite party to the contract, and also a third person or persons acting in concert with such party, from interfering with, or injuring, complainant in the exercise of his exclusive contractual rights, even though complainant be not entitled to a decree of specific performance against the opposite party to the contract.”

To the same effect see Anheuser-Busch, Inc. v. Weber, 364 Mo. 573, 265 S.W.2d 325, reversed on other grounds, 348 U.S. 468, 75 S.Ct. 480, 99 L.Ed. 546; Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell, Mo.App., 329 S.W.2d 393 and 353 S.W.2d 102; Friedman Textile Co. v. Northland Shopping Center, Mo.App., 321 S.W.2d 9. And a combination to injure or destroy the trade, business or occupation of another is an unlawful conspiracy. Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997, 22 L.R.A.,N.S., 607; W. E. Stewart Land Co. v. Perkins, 290 Mo. 194, 234 S.W. 653. While civil conspiracy ordinarily sounds in tort, because the gist of the action is the wrong done by acts in furtherance of the conspiracy, Royster v. Baker, supra; Rippe v. Sutter, Mo., 292 S.W.2d 86; Kansas City v. Rathford, supra; yet where an action for damages will not afford an adequate remedy, equity will grant injunctive relief. Lohse Patent Door Co. v. Fuelle, supra; Nokol Co. of Missouri v. Becker, supra. In the light of the foregoing authorities we are of the opinion that if the evidence sustained plaintiffs’ claim that Laskowitz and one or more of the other defendants entered into and carried into execution a conspiracy for the purposes and with the objectives stated, plaintiffs were entitled to injunctive relief against such conspirators, even though some were not signers of or parties to the contract of December 17, 1958.

Our inquiry, then, must be broadened to determine not only whether Laskowitz violated his contract, but whether or not any of the other defendants conspired and acted in concert with him to that end. In that connection it is appropriate to point out that plaintiffs had the burden of proving the fact of the conspiracy, and the overt acts pursuant thereto, by clear and convincing evidence. State ex rel. Eagleton v. Stupp Bros. Bridge & Iron Co., Mo., 380 S.W.2d 382; Fitzpatrick v. Federer Realty Co., Mo., 351 S.W.2d 673. However, the courts have long recognized that an unlawful understanding or agreement is seldom, if ever, susceptible of direct proof, and it is therefore a well-settled rule that the conspiracy may be shown by circumstantial evidence. Sandler v. Schmidt, Mo. 263 S.W.2d 35; State ex rel. Prudential Ins. Co. of America v. Bland, 354 Mo. 495, 190 S.W.2d 234. Thus the conspiracy may be inferred from and proven by evidence showing the collusive and concerted actions of those alleged to be parties to it and the surrounding circumstances. Sandler v. Schmidt, supra; State ex rel. Prudential Ins. Co. of America v. Bland, supra; Medich v. Stippec, 335 Mo. 796, 73 S.W.2d 998. With these criteria in mind we turn to a review of the evidence.

There can be no doubt that Laskowitz was the moving spirit in the incorporation and subsequent operation of Aljean Furniture. Immediately after its inception in 1958 he became the owner of 103 of its outstanding 105 shares, and served as its president and as a member of its board of directors, on the record, at least, until March 1963. From the beginning the company occupied quarters in real estate owned by Laskowitz, and so far as the evidence shows little, if any, rent was ever paid him in cash. According to Koerner, Aljean Furniture never made any money, and Laskowitz testified that in 1959 he made a loan to the company, of which only $800 was ever repaid and over $13,000, together with interest, remained due and payable by Aljean Furniture at the time this suit was filed. There was testimony by both Laskowitz and Koerner to the effect that from the time of its incorporation Koerner was the actual operating officer of Aljean Furniture, that Laskowitz was, “ * * * more or less President in name only” and that Koerner, “ * * * took care of all of the production of the furniture and also took care of the office.” If Koerner was the actual operating officer of the Aljean Furniture from 1958 on, he showed an astonishing lack of knowledge of its affairs. For example, when his deposition was taken, on April 3, 1964, Koerner testified that until Laskowitz allegedly withdrew from the company in March, 1963, only 5 shares of stock had ever been issued, and that 100 more shares were then issued to Laskowitz; that he did not know how Laskowitz acquired the 100 shares and had no recollection as to whether Laskowitz paid in $10,-000 in cash or the equivalent for the shares; and that Aljean Furniture was never indebted to Laskowitz. In his testimony during the subsequent trial he explained that after his deposition was taken he examined the company’s books and then recalled the note that the company made to Laskowitz. When the court inquired whether, as president, he had not known that there was an outstanding indebtedness to Laskowitz his answer was, “I never paid that much attention to the books.” Yet, before he became president of record, he was secretary-treasurer, and presumably in charge of the books of Aljean Furniture. At the trial Koerner also exhibited a similar lack of knowledge concerning the rent due from the company to Laskowitz for the space it occupied. Defendants’ protests to the contrary, it is apparent that from its incorporation Laskowitz was the actual as well as the titular operating officer of Al-jean Furniture, and that it was completely dominated and controlled by him.

Laskowitz testified that he never saw the Aljean Company’s Conform Chair until April, 1964, and in his deposition, and in part read into evidence, Koerner insisted that no development work was done by him on Aljean’s Conform Chair before February 15, 1964, the day after the principal patent expired. However, during the subsequent trial Arthur C. Ferro, plaintiffs’ general manager and executive vice-president, and Mrs. Marge Daniels, their office manager, testified that during a visit made by Laskowitz to plaintiffs’ plant in the summer of 1962 Laskowitz told them that he was going to build a contour-type chair when the patents expired; and that when Ferro remonstrated and reminded Laskowitz of the covenant in his contract, Laskowitz then changed his statement and said that Koerner would build them. Plaintiff also produced Joe Palazzolo, an upholsterer who had worked for plaintiff Contour Chair for 14 years, part of which time Laskowitz was its president, who stated that on the occasion when Laskowitz visited plaintiffs’ factory in the summer of 1962 he asked Las-kowitz whether he was going to make contour-type chairs, and that Laskowitz told him that when the patent went off he would probably do so. Palazzolo also related that in December, 1962 he had encountered Las-kowitz at a fabric house, and that he again inquired whether Laskowitz was going to make contour-type chairs. Laskowitz’s answer on that occasion, according to Palaz-zolo, was that he was going to retire but that Koerner might make them.

In their cross-examination of Ferro defendants developed that in the Fall or at the end of 1962, Georgia Van Leuven, who then worked for plaintiff Contour Chair but had previously been employed by defendant Aljean Furniture, described in detail to Fer-ro the contour-type chair which was then being developed at Aljean Furniture, including the safety belt mechanism. On redirect examination Ferro related that she had also told him that she had seen the drawings that Laskowitz had made of the chair. On inquiry by the court Ferro stated that Georgia Van Leuven had not said that she saw the chair in production, but that she had seen the drawings of it and had described to him in detail how it was to operate.

On February 18, 1963, Earl N. Fleming, plaintiff’s Contour Chair plant manager, at Ferro’s request, went to the Aljean Furniture ostensibly as a purchaser. He was waited on by Laskowitz and made a down payment on a stationary-type chair made by Aljean Furniture. A lengthy conversation ensued, Fleming related, in which Laskowitz identified himself as the designer of the Contour chair, told him its history, and in the process made the statement several times that he was working on a contour-type chair, similar to plaintiffs’ Model 100, which would be put on the market after February, 1964. Laskowitz also told him, Fleming stated, that dealers would be established in various cities he named.

Plaintiffs’ witness Marion Dorsey, of Columbus, Ohio, who had retailed Contour chairs in that city since 1950, testified that on July 9, 1963, he bought a stationary-type chair from Aljean Furniture and that Koerner personally delivered it to him in Columbus later that summer. Dorsey stated that Koerner also brought with him in his delivery wagon a movable chair which Dorsey described, and identified from a photograph, as similar to plaintiffs’ Contour chair. Koerner told him, Dorsey stated, that, “they” or “he” would build it when the patents expired. Dorsey also testified that he was in St. Louis in October, 1963, and had a conversation with both Lasko-witz and Koerner at the Aljean Furniture plant about the chair that they would build when the patent ran out. Dorsey related that he insisted that they not build the contour-type chair until they were sure they were able to do it without any patent infringement, and that Laskowitz and Koer-ner said that the patent would run out in February, 1964, at which time they could build the contour-type chair. Dorsey said that he again visited the Aljean Furniture factory in the latter part of March or early in April, 1964, at which time Koerner and Neiner were present. They told him they were ready to build their chair and asked him if he wanted to handle it in Ohio. He stated that he bought such a chair from Al-jean Furniture at that time.

Dorsey’s testimony that Koerner had exhibited a movable contour-type chair to him in the summer of 1963 was substantiated by Kenneth D. Van Fossen and Robert W. Piper, two of his salesmen, both of whom testified that Koerner had also shown the chair to them in Columbus in August, 1963, during the Ohio State Fair. Van Fossen said that he discussed with Koerner the similarity of the chair to the Contour chair, and that Koerner said “they” were going to build the chair after the patent rights were out on the Contour chair. Koerner identified the “they” as “His company and their company.” Piper stated that Koerner told him the chair would be available for the 1964 Ohio State Fair and that “we” were going to manufacture the chair, but did not say whom he referred to as “we.”

On behalf of defendants, Koerner testified on direct examination that in March, 1963 he decided that he would make contour-type chairs when the patent ran out, and that Laskowitz resigned as president of Aljean because he was barred by his contract of December 17, 1958, from making them and had to terminate his relationship with Aljean Furniture. Despite his testimony in his deposition that he had not done any development work on such a chair prior to February 15, 1964, Koerner testified that he had shown Dorsey a movable-type chair in Columbus, Ohio, in August, 1963. On direct examination he stated that the chair shown Dorsey was different from those subsequently manufactured and sold by Al-jean Furniture after February 14, 1964. But on cross-examination he conceded that the chair exhibited to Dorsey had the belt and buckle mechanism; and when pressed to state the differences between the chair shown Dorsey and the Aljean chair made after February, 1964, finally admitted that “Someone that didn’t know would consider it the same chair, similar chair” and that overall it was so like the plaintiffs’ Contour chair that the ordinary public would take it to be a Contour chair.

We believe and hold that the fore going evidence clearly and convincingly proved the conspiracy as to defendants Laskowitz, Koerner and Aljean Furniture, and their actions pursuant thereto. It is obvious that as early as 1962 Laskowitz and Koer-ner, with full knowledge by both of the restrictive covenants in Laskowitz’s agreement of December 17, 1958, with plaintiff Contour Chair, and with the intent to evade and violate them, conceived a plan whereby Laskowitz would design and develop a contour-type chair similar to plaintiffs’ Contour Chair; and that their chair would be manufactured and sold, ostensibly by Alj ean Furniture and Koerner, in direct competition with plaintiffs after February 14, 1964, when the design patent expired. The evidence shows that Laskowitz began to develop Aljean’s Conform Chair late in 1962. This in itself was a breach of that part of his contract in which he had agreed that he would not engage in the research and development of a contour-type chair. The evidence further shows that the chair had been developed by Laskowitz, Koerner and Al-jean Furniture as early as the summer of 1963, when it was exhibited to Dorsey and his salesmen in Columbus, Ohio. The conclusion is inescapable that Laskowitz and Koerner delayed the manufacture and sale of their chair until after February 14, 1964, to lend color to their claim that only Alj ean Furniture and Koerner, and not Laskowitz, was and had the right to compete with plaintiffs. Defendants stress their evidence that in March, 1963, Laskowitz severed all connection with Aljean Furniture. It is apparent that the trial court reached the conclusion, which we share, that Laskowitz’s supposed withdrawal was part and parcel of the original plan to evade and violate the terms of his agreement, and that his alleged severance was one of fiction and not of fact. His statements, as well as those of Koerner, as to what would be done regarding the development and manufacture of their Conform Chair; his surreptitious development of the Conform Chair; the inconsistencies in Koerner’s testimony, as well as his lack of knowledge of the business affairs of the company, both before and after he became president; and Laskowitz continued daily presence in the plant of Aljean Furniture after his alleged withdrawal, support that conclusion. We hold, therefore, that Las-kowitz, Koerner, and Aljean Furniture were properly enjoined and restrained from manufacturing, selling and offering for sale their Conform or Conforming chair or any chair similar to plaintiffs’ Contour chair, until December 18, 1968.

However, an equally careful and thorough study of the record has convinced us of the insufficiency of the evidence as to defendants William Neiner and Althea Koerner. While Neiner was an officer and director of Aljean Furniture from the time of its incorporation, his uncontradicted testimony was that it was a mere paper office. He was never employed by the company, took no part in its operation, and visited its offices only a few times a year, and then only for the purpose of socializing with Las-kowitz and Koerner. Althea Koerner did not become a director of Aljean Furniture until March, 1963, and then in name only. There is no evidence in the record which indicates that either Neiner or Althea Koerner knew of the contract between plaintiff Contour Chair and Laskowitz. Rosen v. Alside Inc., Mo., 248 S.W.2d 638. Nor was there any evidence that they knew that Las-kowitz, Koerner and Aljean Furniture were engaged in developing a chair similar to plaintiffs’ Contour chair, for the purpose of competing with plaintiffs, or that they knowingly performed any act or took any action to further or carry out the unlawful purposes of the conspiracy. We hold therefore, that the judgment was erroneous and cannot stand as to them.

That part of the judgment and decree in favor of plaintiffs and against defendants Laskowitz, Koerner and Aljean Furniture Manufacturing Company is therefore affirmed, and that part in favor of plaintiffs and against defendants Althea Koerner and William Neiner is reversed. All costs should be taxed against defendants Lasko-witz, Koerner and Aljean Furniture Manufacturing Company.

PER CURIAM:

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

Accordingly, that part of judgment and decree in favor of plaintiffs and against defendants Laskowitz, Koerner and Aljean Furniture Manufacturing Company is affirmed ; that part in favor of plaintiffs and against defendants Althea Koerner and William Neiner is reversed; all costs to be taxed against defendants Laskowitz, Koerner and Aljean Furniture Manufacturing Company.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: RUDDY, Judge. PER CURIAM.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, (Plaintiff) Appellant, v. Frank KROUPA, (Defendant) Respondent.
    No. 31878.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 23, 1966.
    Application to Transfer Denied July 11, 1966.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, John Mohler and Leo E. Eickhoff, Jr., Kansas City, for appellant.
    Earl R. Blackwell, Blackwell & Blackwell, Hillsboro, for respondent.
   RUDDY, Judge.

This is a condemnation action by plaintiff, Southwestern Bell Telephone Company, a corporation, to acquire and appropriate a right-of-way and easement across the land owned by defendant. Plaintiff and defendant filed exceptions to the award of the Commissioners and upon a jury trial defendant was awarded the sum of $7500. Plaintiff appealed from the ensuing judgment.

The easement acquired in this condemnation action was a right-of-way to construct, operate, maintain, inspect, replace and remove an underground communications system consisting of underground cables, wires, conduits, surface testing terminals, markers and other necessary appurtenances upon, over and under a strip of land one rod in width (16i/£feet) across the land of the defendant. In connection therewith plaintiff acquired (a) the right of ingress and egress across the land of defendant by reasonable route to and from said right-of-way; (b) the right to place such surface markers and surface testing materials as may be necessary on said strip; (c) the right to clear and keep cleared all trees, roots, brush and other obstructions from the surface and sub-surface of said strip as may be necessary for the construction, operation and maintenance of said communications system; and (d) the right to install temporary gates and fences crossing said strip, which fences shall be repaired and restored to their former condition following construction. The following rights were reserved to the defendant: the right to freely use and enjoy the right-of-way insofar as the exercise thereof did not endanger or interfere with the construction, operation and maintenance of said communications system or create a hazard thereto ; the right to cultivate and grow crops; and the right to establish roadways and utility lines across said easement, except that no building or structures shall be erected within the easement and right-of-way without the written consent of the plaintiff.

There is some confusion in the record regarding directions. As pointed out by plaintiff, defendant’s original tract was not laid out in a true north and south direction but is rectangular, lying lengthwise northwest to southeast. However, we shall refer to the property as if it was laid out in a true north and south direction.

Defendant owned 29.44 acres altogether which was divided by Interstate Highway 55 in Jefferson County, Missouri. Twelve and nine-tenths acres of his land lay east of the right-of-way of Interstate 55 and it is this portion of defendant’s land on which the cable is located. As heretofore stated, the easement is 16½ feet in width and extended 809.45 feet along the western boundary of defendant’s 12%o acre tract, which was immediately adjacent to the right-of-way of Interstate Highway 55. The easement then extended eastwardly an additional 742.35 feet along the southern boundary of defendant’s land. The southern boundary of defendant’s land abutted the northern boundary of a subdivision known as Arnold Terrace. The total length of the easement was 1551.80 feet with a total area of %o of an acre. The cable is buried underground at a depth of 40 inches and when it was laid plaintiff tore up the earth and left a ridge across defendant’s land. However, plaintiff’s engineer said the property will be restored to the owner’s satisfaction and will be in the same condition as it was before the cable was laid. Plaintiff planned to level off the ground and plant grass seed. Markers will be put in the fence line to let anybody interested know that a cable is underground. One marker will be at the northwest corner of defendant’s property, one at the corner where the easement turns eastwardly from Highway 55 and another one will be placed at Highway 141, which highway is at the southeast corner of defendant’s land. These markers are 25 foot creosoted poles with signs stating “there is a cable buried here.” Other matter is contained on the signs. In order to control possible washing of the land, plaintiff placed erosion plugs in the ditches where the water was likely to run and its engineers said these plugs will throw the water to the side and prevent any erosion from continuing.

On the 12%o acres involved is defendant’s home, which he described as an old building, and another old farm building. The land is about ½ mile from the Arnold Bank, about 300 feet from the Meramec River and approximately 1500 feet from the Fox School House and, as heretofore pointed out, part of the property fronts on Highway 141. The property is about 250 feet from Interstate Highway 61-67.

At the time defendant bought the property and for some time thereafter he used it for general farming and truck gardening purposes. However, he has not farmed the property for the past 12 to 15 years. At the time of trial he said he was just holding the property “for speculation or subdivision, for motels or commercial * * The property was described as gently rolling, with no bluffs and slopes toward the north, which we understand to mean the high part of the property is at the south end of defendant’s land.

Defendant’s witnesses testified that the land was suitable for subdivision and commercial purposes, pointing out that a subdivision known as Arnold Terrace is located adjacent to defendant’s land along its southern boundary where the cable is located. One of defendant’s witnesses said that if the property is developed into a subdivision, a street could be put along the line where the telephone cable is now laid. Another witness testified that it could be used for a motel building, shopping center or service station. However, he thought the cable line might interfere with the sewerage system. One of plaintiff’s appraisers said that the property could be used for a number of purposes. Defendant’s evidence showed that there were subdivisions surrounding his property and that water and electricity were available.

One of the principal complaints of the defendant, concurred in by his witnesses, was that the laying of the cable prevented him from grading along the top ridge of his property at the south boundary, which was adjacent to the Arnold Terrace Subdivision. Defendant said that the Arnold Terrace Subdivision was 8 to 10 feet lower than his property at the southern boundary and that it was his intention to “grade it off where his line abuts Arnold Terrace.” He said that with the cable there he could not grade it as he planned.

In one of the points relied on by plaintiff it contends that the court erred in giving and reading to the jury defendant’s Instruction D-l. It makes four specific complaints against this instruction, only one of which we need discuss. In this one complaint it contends that the instruction permits double damages. We think it is susceptible of such meaning.

The pertinent parts of Instruction D-l read as follows:

“The Court instructs the jury that in assessing the just compensation for damages, if any, to be paid to the defendant, you should allow defendant the difference between the fair market value of all of his property before and its fair market value after the appropriation by plaintiff of a right of way and easement over and across defendant’s property.
“In determining the compensation for damages, if any, to which defendant is entitled, the jury should ascertain the amount and reasonable market value of the land actually taken and the damages, or decrease, if any, in the value of the remainder of defendant’s property as a whole resulting from the taking of a portion of defendant’s property for the right of way and easement. The total amount found on account of these items less the amount of any special benefits, if any, will be the amount you should allow the defendant.” (Emphasis ours.)

The above instruction, given in the instant case, is similar in all material respects to an instruction given in the case of State ex rel. State Highway Commission v. Berridge, et al., Mo.App., 166 S.W.2d 791, l. c. 792. In that case the court held:

“A reading of the above instruction will clearly show that it was erroneous in that it provided for double damages. Such an instruction has been condemned by our courts.”

While there was no discussion or comment by the court why it thought the instruction provided for double damages, the error in that direction is plainly obvious to us.

Paragraph 1 of the instant instruction authorizes the jury to allow defendant the difference between the fair market value of all of his property before and its fair market value after the appropriation by plaintiff of the right-of-way. If defendant would have stopped there and not included the second paragraph, the instruction would have been proper. However, in the second paragraph the jury is told that in determining the compensation for damages it should ascertain the reasonable market value of the land actually taken and the decrease, if any, in value of the remainder of defendant’s property, and then it was told in a separate sentence within that paragraph, that “[t]he total amount found on account of these items less the amount of any special benefits, if any, will be the amount you should allow the defendant.” (Emphasis ours.) This last sentence can be taken to mean, by a jury of ordinary laymen, that it can allow the amount of damages found by it under paragraph 1, plus the reasonable market value of the land actually taken for right-of-way purposes, plus the decrease in the value of the remainder of defendant’s property and the total of these amounts, as the instruction states, “will be the amount you should allow the defendant.” Obviously, this is not the correct measure of damages and if so understood and followed by the jury would result in the allowance of double damages. We think the instruction is susceptible of such meaning by the jury. It is significant to note that paragraph 2 of the instruction under review is not offered as an alternative method for the computation of the amount of damages the jury should allow, to the method provided in paragraph 1. The harmful words in paragraph 2 are those we have italicized, namely, “these items.” Certainly, these words are misleading and can be understood to mean all of the items of compensation defined in paragraphs 1 and 2.

Paragraph 1 has been referred to in the cases as a “measure of damages” instruction, whereas, paragraph 2 has been referred to as an “admeasurement of damages” instruction. Frankly, there is no need for a defendant in a condemnation action to give both of these instructions. One or the other of the instructions should have been given and not both. However, in future condemnation trials, where only part of property is taken, MAI No. 9.02 will be used. It is interesting to note that in cases decided subsequent to the case of State ex rel. State Highway Commission v. Berridge, supra, containing instructions using the “admeasurement of damages” form, instead of using the words “these items,” they use the words “these two items” and have numbered the two elements recoverable under the “admeasurement of damages” instruction as “first” and “second.” See State ex rel. State Highway Commission v. Williams, Mo.App., 263 S.W.2d 444, and State ex rel. State Highway Commission v. Goodson, 365 Mo. 260, 281 S.W.2d 858.

The measure of damages instruction should correctly set out the proper standard of measuring damages and should not be susceptible of misunderstanding.

Adding to the confusion and the erroneous meaning Instruction D-l presents is the total lack of evidence in the record to support paragraph 2 of said instruction. Although plaintiff makes no complaint about this failure of proof, we think the giving of paragraph 2 under the circumstances compounds the error we have found to exist in the language of the instruction. There is not one bit of evidence in the record from which the jury could ascertain “the amount and reasonable market value of the land actually taken * * * for the right of way and easement.” There is no evidence to show the damages or decrease, if any, in the value of the remainder of defendant’s property. All of the evidence as to value pertains to the fair market value of all of defendant’s property before the appropriation by plaintiff of a right-of-way and easement and its fair market value after the appropriation. In the absence of evidence to support paragraph 2 of the instruction, the jury was thereby given a roving commission to speculate and surmise as to the items of damage recoverable under said paragraph 2. Likewise, the jury was told that from “the total amount found” on account of the items of compensation recoverable it should deduct the amount “of any special benefits.” Here again, the record is devoid of any evidence showing any special benefits accruing to defendant. While, of course, the inclusion in paragraph 2 of the item regarding the amount of any special benefits was detrimental to the defendant and not harmful to the plaintiff, we point it out in order to show that the instruction was not only erroneous in the area complained of by plaintiff, but was erroneous in other areas and that paragraph 2 of said instruction fails to find evidentiary support in the record.

Defendant in his defense of Instruction D-l contends that the court in the Ber-ridge case, supra, held that double damage was permitted because the instruction included the right to recover for the cost of a fence and that this could not be cured by remittitur as the trial court had attempted to do. We have pointed out that the instruction in the Berridge case, supra, was similar in all material respects to the instruction in the instant case. In the Berridge case the instruction also permitted recovery for the cost of building and maintaining a fence. When the trial court overruled the motion for new trial, the record showed the following order: “By the order of the court, the defendants herein remit $50.00 for item of fence in this cause.” (166 S.W.2d l. c. 792.) Thereafter, the plaintiffs took exception to the action of the court in overruling the motion for new trial and in accepting a remittitur of $50. On appeal, the appellate court, after holding the instruction was erroneous because it provided for double damages, in a separate paragraph of the opinion, when commenting on the trial court’s action in accepting the remittitur of $50, said: “The error in that instruction could not be cured by the court’s entering a remittitur. It would be impossible for the trial court to tell how much of the damages the jury allowed for erecting and keeping repaired the fence in question.” (166 S.W.2d l. c. 792.) This statement by the court had nothing to do with its finding that the instruction provided for double damages. The statement made was merely the reviewing court’s finding that the trial court erred in granting the remittitur of $50.

Because of the error of the trial court in giving Instruction D-l, the judgment is reversed and the cause is remanded for a new trial.

WOLFE, P. J., and McGHEE, Special Judge, concur.

OPINION ON MOTION FOR REHEARING OR IN THE ALTERNATIVE TO TRANSFER CAUSE TO THE SUPREME COURT

PER CURIAM.

Defendant in his motion for rehearing has pointed out that we recently approved an instruction in the case of Southwestern Bell Telephone Company v. Webb, Mo.App., 393 S.W.2d 117, which was identical in all respects to defendant’s Instruction D-1. This case was not cited by defendant in his brief. The opinion in the Webb case did not recite the instruction. We have examined the transcript in that case and have found the questioned instruction is similar in all pertinent respects to defendant’s Instruction D-1 in the instant case. The opinion in the Webb case did hold that the instruction properly hypothesized the issue of damages and did not authorize an award of double damages. In that respect the opinion in the Webb case is in error and is in conflict with what we have said, in this opinion. That part of the opinion in the Webb case that holds the questioned instruction properly hypothesized the issue of damages and did not authorize an award of double damages should not be followed.

Defendant’s motion for rehearing, or in the alternative to transfer cause to the Supreme Court of Missouri is overruled.


author: WOLFE, Presiding Judge.

text:
    Genevieve BIEHLE, Plaintiff-Respondent-Appellant, v. Robert Ray LaCHANCE, Defendant-Appellant-Respondent.
    Nos. 31947, 31993.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied May 23, 1966.
    Application to Transfer Denied July 11, 1966.
    William L. Mason, Jr., Galena, for defendant-appellant-respondent.
    Earl R. Blackwell, Hillsboro, for plaintiff-respondent-appellant.
   WOLFE, Presiding Judge.

This is an action brought by the widow of Gilbert H. Biehle. Biehle was killed when the automobile which he was driving was struck by the automobile which the defendant was driving. The plaintiff sought the sum of $25,000 in damages and obtained a verdict and judgment for $15,-000. After an unavailing motion for judgment in accordance with his motion for a directed verdict made at the close of plaintiff’s case or in the alternative for a new trial, the defendant appealed.

The collision occurred on Highway 21 which runs in a general north and south direction. It is intersected from the east by Vineland Road and it was at this intersection that the automobiles collided. Mr. Biehle, husband of the plaintiff, was driving a 1951 Plymouth. He had gone south on Highway 21 to the Vineland Road intersection. He turned left across the northbound lane of 21 to enter Vineland Road and before clearing the northbound lane of 21 his automobile was struck by the defendant’s automobile which was traveling north on Highway 21. Mr. Biehle, who was alone in his car, suffered a broken neck from which he died without regaining consciousness.

The only witness called to testify regarding the collision of the two cars was a State Highway Patrolman. Some questions and answers from a deposition given by defendant, Mr. LaChance, were offered and read to the jury. Photographs of the highway were also introduced. The plaintiff, Mrs. Biehle, testified, but not about the collision as she did not witness the occurrence. All of the testimony and evidence offered was in the plaintiff’s case as the defendant stood upon his motion for a directed verdict.

Highway 21 to the south of Vineland Road is straight and level. It is a two-lane highway about twenty-two feet wide, providing one lane for southbound traffic and one for northbound traffic with each lane approximately eleven feet in width. The photographs show that a short distance north of the intersection the highway turns sharply west into a curve which would obscure southbound traffic from one traveling northwardly. On June 2, 1963, the day of the occurrence, the weather was clear and the road dry. For about a quarter of a mile one, traveling northwardly on 21, would have a clear view of the road ahead up to the intersecting Vineland Road. The defendant stated in his deposition that he was driving a 1960 Plymouth which was in good condition. As he traveled northwardly on 21 he saw the car operated by Mr. Biehle coming south in the lane for southbound traffic approaching the intersection of Vineland Road.

Mr. Biehle’s car was about ten feet north of the intersection when the defendant first noticed it. The car “hesitated for a moment” at the intersection and then turned to its left to go into Vineland Road. The defendant estimated that his own car was about 130 to 132 feet from Biehle’s car when its left front wheel crossed into the northbound lane of 21. The defendant stated that Mr. Biehle, looking straight ahead, drove into the northbound lane at an unvarying speed which he estimated to be between five and ten miles per hour. The defendant stated that his own car skidded 130 to 135 feet into collision with Mr. Biehle’s car when Mr. Biehle’s car was still about three feet short of clearing the northbound lane.

The defendant stated that he was traveling at fifty miles per hour at the time Biehle’s car started into the northbound lane. In another part of the deposition he said that he was traveling at a speed of forty to fifty miles per hour, and later that his speed was forty-five to fifty miles per hour. In another question and answer read he said that his speed was about twenty-five miles per hour at the time of the collision. He also testified that his own car was five or five and one-half feet in width.

The following questions and answers from a deposition by LaChance were read:

“Q Could you tell us, considering the conditions out there that day, the dry level pavement just as it was that day as you have described it, your car, considering the tires you had on it, the condition of your brakes, can you tell us in what distance, going at a speed of 45 miles an hour, that you could have brought your car to a stop?
“A No, not exactly.
“Q Can you estimate it for us?
“A About 150 foot.
“Q Can you tell us, bearing in mind that same question, in what distance it would have taken you to bring your car to a stop at 50 miles an hour ?
“A About 165 to 70 foot.”

The patrolman, who arrived shortly after the accident and while the ambulance which moved Biehle was still there, stated that LaChance gave his speed at fifty miles per hour. He also said that there were skid marks made by the right tire of LaChance’s car up to the point of collision that measured 133 feet in length. The skid mark of the right wheel was unbroken and started at about one foot, seven inches within the northbound lane and angled off to four and one-half feet from the edge of the northbound lane at the point of the collision. Both cars were off the highway after the collision.

The case was submitted upon the humanitarian theory of negligence. It conjunctively required a finding of failure to stop, slacken speed and to swerve. The defendant contends that no submissible case was made on any of the charges of negligence submitted.

The plaintiff conversely asserts that she made a submissible case on defendant’s failure to stop and to slacken speed. She maintains that defendant’s statement that he could stop in 150 feet from a speed of forty-five miles per hour was proof that he could have stopped or slackened his speed in time to have avoided striking Biehle’s car. She predicates this upon the fact that LaChance had the normal reaction time of three-fourths of a second and that therefore he must have been forty-eight feet beyond the start of the skid marks as Biehle’s car entered the intersection. This is a fallacious conclusion. LaChance was never asked to take into consideration his reaction time in estimating the stopping distance. He was never asked where or at what time he started to apply his brakes. He was traveling as stated between forty-five or fifty miles per hour as he approached not only the intersection but also a curve in the highway ahead of him and a short distance beyond the intersection. Biehle’s car hesitated at the intersection and the only logical conclusion that can be reached from the evidence is that LaChance had applied or started to apply his brakes before Biehle started across the northbound lane.

LaChance estimated his distance from the intersection at that time to be 130 feet to 132 feet. His skid marks were measured and found to be 133 feet long. Inasmuch as he skidded at a slight angle it seems apparent that he was approximately 133 feet away at the time his brakes were fully applied. Since he stated that it was at that distance that Biehle started to cross the northbound lane the only conclusion that can logically be reached is that his brakes were fully applied at the time Biehle entered the zone of peril. Plaintiff introduced the testimony of LaChance and, with certain exceptions not here present, she is bound by that testimony unless it is contradicted by other testimony that the plaintiff may introduce. Baum v. Abel, Mo.App., 379 S.W.2d 164 and cases therein cited. Here La-Chance’s testimony was not contradicted. There is no evidence that he could have stopped or further slackened his speed, for with the brakes fully applied he was still traveling at twenty-five miles per hour at the point of collision.

In reaching the above conclusions and in passing upon the question as to whether or not the plaintiff made a sub-missible case of failure to swerve, we are mindful of the fact that we must consider the evidence in the light most favorable to the plaintiff. The plaintiff may have the benefit of the favorable portion of the defendant’s testimony and may use it with other favorable evidence in the case. Here we have little more than the defendant’s uncontradicted evidence. For the proposition that the defendant could have swerved to the left and avoided the collision the plaintiff relies on defendant’s statement that Biehle’s car was about three feet short of clearing the northbound lane at the time it was struck. It is contended that as the northbound lane was eleven feet wide and that Biehle’s car was about three feet short of clearing the lane there remained a space of eight feet in the northbound lane through which the defendant could have driven his car, which was five to five and one-half feet wide, without crossing into the southbound lane.

It is established law that a defendant, after receiving actual or constructive notice of the imminent peril of the other party, must have had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Yarrington v. Lininger, Mo., 327 S.W.2d 104. All we have is the uncontradicted evidence that the defendant did slacken his speed and did swerve. He swerved to the right rather than to the left. At the time he swerved Biehle’s car was directly ahead of him entering the northbound lane, and to defendant’s left was a southbound lane for oncoming traffic. Under such circumstances it would appear that he chose the course that any motorist would have chosen under the same circumstances.

It may be possible that if La-Chance had been able to nicely calculate the speed with which Biehle would proceed to cross he could have turned left and passed behind Biehle’s car. However, the plaintiff had the duty to make her case, to remove it from the field of conjecture and establish it by substantial evidence of probative value or by inferences reasonably drawn from the evidence. Vietmeier v. Voss, Mo., 246 S.W.2d 785. Evidence that some other course than that taken by the defendant would possibly have averted the accident was not enough and did not meet the quantum of proof required of the plaintiff. Shaw v. Griffith, Mo.App., 291 S.W.2d 230; Bauman v. Conrad, Mo.App., 342 S.W.2d 284; Allen v. Hayen, Mo., 320 S.W.2d 441. In Breshears v. Myers, Mo., 266 S.W.2d 638, l. c. 640, the Missouri Supreme Court stated when considering a somewhat similar situation:

“ * * * As the situation developed it probably would have been better if he had changed its course to the left. However, as we said in Vietmeier v. Voss, Mo.Sup., 246 SW.2d, loc. cit. 789, where it was contended that the defendant therein who attempted to avoid the plaintiff by swerving, should have sounded his horn: ‘Inasmuch as in the available time it was possible to do only one of the two things, and defendant did do one of those two things, it was not negligence for defendant not to have done the other thing.’ * * *»

In summary, the evidence presented is simply void of any proof that the defendant was negligent in any of the respects with which he was charged and plaintiff failed to make a case properly submissible to the jury. The judgment is therefore reversed.

RUDDY, J., and J. MORGAN DONEL-SON, Special Judge, concur.

ANDERSON, J., not participating.