author: MOORE, Justice.

text:
    J. L. GIBSON, Appellant, v. L. D. JOHNSON et al.
    No. 258.
    Court of Civil Appeals of Texas. Tyler.
    March 30, 1967.
    Rehearing Denied May 4, 1967.

      Ernest L. Sample, Beaumont, for appellant.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Henry H. Rogers, Lufkin, for appellees.
   MOORE, Justice.

This is an appeal from a summary judgment. Appellant, J. L. Gibson, brought suit against L. D. Johnson and the Brotherhood of Locomotive Engineers for damages alleging that he was a member in good standing with the Brotherhood and that as such Johnson and the Brotherhood had the contractual obligation to represent him in handling grievances against his former employer, Missouri Pacific Railroad Company; that on or about December 5, 1950, appellant while engaged in his duties as a locomotive engineer for Missouri Pacific received personal injuries as a result of which he was disabled from performing his duties and was therefore laid off and out of service because of his condition until July 5, 1958; that on said date he had fully recovered and was able to resume his employment as an engineer; that on said date Johnson was the chief officer and agent of the Brotherhood and was charged with the responsibility of representing the appellant in the preparation and presentation of his request to the railroad company to return to active duty; that he requested Johnson and the Brotherhood to represent him in his application for reinstatement; that because of some ill will against him, Johnson end the Brotherhood, either intentionally or negligently, failed to properly present his claim to return to work. Specifically, he alleged that the appellees negligently failed to make a timely appeal of his claim to the National Railway Adjustment Board and also refused to allow his attorneys to participate in the hearing before the board; that as a direct and proximate result of the conduct of Johnson, which was condoned or participated in by the Brotherhood, appellant’s application to return to work was denied and that by reason thereof he was entitled to compensatory and punitive damages against Johnson and the Brotherhood in the sum and amount of $250,000.00.

Appellees Johnson and the Brotherhood denied the allegations, both generally and specially, and filed a motion for summary judgment. In the motion for summary judgment, appellees offered evidence showing that appellant had suffered an injury while in the course of his employment with the railroad company in 1950 and as a result appellant had brought a suit against his employer, Missouri Pacific Railroad Company, for total and permanent disability; that in said suit appellant alleged that he was totally and permanently disabled ; that his cause was finally submitted to a jury under instructions allowing the jury to award appellant damages for all past and future loss of earnings, as well as damages for all past and future pain and suffering; that as a result, the jury awarded appellant the sum of $32,500.00; that appellant ultimately collected the judgment in that amount in March, 1958; that within approximately four months thereafter, on July 5, 1958, appellant filed a request with the railroad company requesting a return to duty as an engineer. The railroad refused the request. Thereupon, appellant sought the services of Johnson and the Brotherhood in the further presentation of his claim for restoration to duty with pay commencing on July 5, 1958. Johnson presented appellant’s application to the various levels of railroad officials and being unsuccessful, thereafter appealed the appellant’s claim to the National Railway Adjustment Board, hereinafter referred to as NRAB, which board also denied appellant’s claim for reemployment, by an award dated October 31, 1963.

The award of the NRAB was attached to and made a part of appellees’ motion for summary judgment. The original award, as well as the subsequent interpretative opinion and supporting opinion, makes it clear that the reason for the ruling of the board denying appellant the right to return to work as an engineer was because of the fact that he had previously filed a suit claiming total and permanent disability in which he recovered the sum of $32,500.00, and was therefore estopped to take a contrary position in his application for reinstatement, and the award also makes it clear that such facts were the sole and only reason for the award denying his right to return to work with the railroad. The award, together with the interpretative opinion and the supporting opinion, further shows that the board afforded appellant a full hearing on the merits of his claim and that the decision denying appellant’s claim was not based upon any failure of the appellees to perfect any step in presenting the claim within the time limit prescribed. In reply to a dissenting opinion, the majority filed a supporting opinion which reads in part as follows:

“The dissenters quite ineffectively complain against the well established rule enunciated time and again that once a plaintiff declares in Court he is permanently unable to perform work, in the future, at his railroad occupation, and offers proof in substantiation of his disability, he is no longer in position to claim, with respect to any alleged future rights or privileges, further employment under his prior employment contract.”

Immediately following this, the board cited many cases and prior NRAB decisions announcing the rule of law that once a plaintiff has obtained a judgment against his employer for total and permanent disability as a result of an injury sustained in the course and scope of his employment, he is estopped from claiming any right to return to work for that employer. The award further stated that: “This Was a simple case of a demand for return to service, wholly inconsistent with an F. É. L. A. trial had on that very issue. (See Jay Lee Gibson v. Guy A. Thompson, Trustee, Missouri Pacific Railroad Company, N. O. T. & M. Ry. Co., District Court of Harris County, Texas, 129th Judicial District, Court of Civil Appeals, 290 S.W.2d 305, Supreme Court of Texas, 298 S.W.2d 97, Cert. granted by The Supreme Court of the United States, 355 U.S. 18 [78 S.Ct. 2, 2.L.Ed.2d 1], rehearing den., 355 U.S. 900 [78 S.Ct. 258, 2 L.Ed.2d 197]).”

Appellant filed nothing in response to the motion for summary judgment.

After a hearing, the trial court rendered judgment reciting that the court was of the opinion and found that the evidence presented in connection with the motion for summary judgment shows that, except for the amount of damages, there was not a genuine issue of material fact and that the appellees were entitled to a summary judgment as a matter of law.

Appellant excepted to the ruling of the court and perfected this appeal in which he insists that the trial court erred in granting the summary judgment because the evidence contained in the depositions on file in the cause raised a genuine issue of fact upon the questions of (1) whether appellees acted intentionally or in bad faith in presenting his claim; (2) whether appellees negligently failed to timely file his appeal with the ÑRAB; and (3) whether they intentionally or negligently refused to allow his attorney to participate in the proceedings.

Appellees contend that since the record shows conclusively that appellant had filed suit and collected for total and permanent disability against the railroad, appellant was estopped from asserting a right to return to work. Consequently, they assert that since successful prosecution of his claim was impossible, appellees’ conduct in presenting his fruitless claim before the NRAB could not, as a matter of law, have been a causal factor in the adverse ruling and therefore their conduct was not a cause in fact of any damages suffered by appellant. We sustain the contention and affirm the judgment of the trial court.

A defendant moving for a summary judgment on the whole case assumes the negative burden of showing as a matter of law that the plaintiff has no cause of action against him, or that plaintiff’s claim is barred as a matter of law by an affirmative defense. McDonald, Texas Civil Practice, Vol. 4, Sec. 17.26.1; Kellner v. Blaschke, (Tex.Civ.App.) 334 S.W.2d 315.

In determining a motion depending upon extrinsic evidence, the court’s task is analogous to that which he performs on a motion for directed verdict. He accepts as true the pleading and all evidence of the parties opposing the motion which tends to Support such parties’ contention, and gives him the benefit of every reasonable inference which properly can be drawn in favor of his position. McDonald, Texas Civil Practice, Vol. 4, Sec. 17.26; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Appellant alleged a cause of action in tort for damages resulting from misfeasance or nonfeasance of his agents in handling his claim of a right to return to work with the railroad. Because of the particular contractual relationship of agency involved here, it appears to us that the relationship of the parties was in many respects similar to that of attorney and client. For this reason, we think the rights of the parties would be controlled by the same rules governing the liability of an attorney to his client. In a situation involving the attorney-client relationship where the client seeks to recover against his attorney on the ground that the latter caused him to lose his cause of action, the burden of proof is on the client to prove that his suit would have been successful but for the negligence of his attorney, and to show what amount would have been collectible had he recovered judgment. “The attorney stands in exactly the same position as that in which the defendant in the lost suit would have stood in the trial against him, and is entitled to present to the jury every fact that would have tended to lessen the damages against that defendant.” 7 Tex.Jur.2d, Sec. 135, page 205.

Under the. facts before us, we see no reason why the foregoing principles of law should not be applicable to the situation presented here.

Thus, in order for the principal (appellees) to prevail on motion for summary judgment and thereby defeat the agent’s (appellant’s) claim fot damages for misfeasance or nonfeasance in handling his claim, the principal (appellees) would be required to conclusively show (1) that appellant would not have been successful even though the claim had been properly prosecuted or (2) that neither the alleged acts of misfeasance or nonfeasance proximately caused the adverse ruling or loss of his claim.

In Jones v. Central of Georgia Railway Company, (5th Cir., 1964) 331 F.2d 649, the court said:

“ * * * The Trial Court did conclude that when an employee alleges and successfully proves in such a suit that he is permanently injured and disabled, rendering him unable in the future to perform the work of a switchman, or to do other manual labor, and is compensated for lost wages ‘past, present and future’ and the railroad company pays the full judgment pursuant to such a lawsuit, the railroad is not bound as a matter of law to retain the employee in its services with back pay. The Court grounded its decision on collateral estoppel. In our opinion the reasoning of the Trial Court is sound from a moral and a legal point of view in the circumstances of this case. * * ”

In Hodges v. Atlantic Coast Line Railroad Company, (5th Cir., 1966), 363 F.2d 534, the court said:

“Without passing on the issue of estop-pel, we feel compelled to say that we strongly disapprove of any practice which permits an employee to sue his employer claiming permanent and total disability establish his claim by proof which convinces the jury of the truth and justice of his allegations, obtain and collect a judgment, and then force his employer to reinstate him in his former position with back pay for time lost. The NRAB asserts that it recognizes and applies estoppel in appropriate cases, and that it has no sympathy for an employee who, by taking inconsistent positions, undertakes to collect twice for the same claim.”

The court in that case went on to say: “It does seem to us that at some point in the procedure the matter of estoppel should have been considered and a decision rendered with respect to it.”

The principle of collateral estoppel is recognized in this state. In Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, the Supreme Court of this state said:

“The doctrine of judicial estoppel is not strictly speaking estoppel at all but arises from positive rules of procedure based on justice and sound public policy. It is to be distinguished from equitable estoppel based on inconsistency in judicial proceedings because the element of reliance and injury essential to equitable estoppel need not be present. ‘Under the doctrine of judicial estoppel, as distinguished from equitable estoppel by inconsistency, a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertions sought to be made.’ 31 C.J.S. Estoppel § 121, p. 390; Grier v. Canada, 119 Tenn. 17, 107 S.W. 970; Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313. It has likewise been held that it is not necessary that the party invoking this doctrine should have been a party to the former proceeding. Hatten Realty Co. v. Baylies, 42 Wyo. 69, 290 P. 561, 72 A.L.R. 587; Corder v. G. B. Sprouse & Co., 20 Tenn.App. 486, 100 S.W.2d 1001.”

Appellant recognizes the rule of estoppel as announced in the foregoing cases, but nevertheless insists that his pleadings alleging misfeasance and nonfeasance are sufficient to raise a fact issue upon the question of whether appellees properly presented the matter to the board. He seems to take the position that appellees should have in some manner convinced the board that estoppel was not applicable because his previous suit against the railroad was not in fact or in law a suit for total and permanent disability nor was the judgment large enough to show that he is being compensated for total and permanent disability. All proceedings in that suit were before the board, and based upon those proceedings, the board concluded that the facts sustained the railroad’s defense of estoppel. The very same evidence is now presented to us for the purpose of showing that appellant’s claim before the NRAB could not have been successfully prosecuted despite the conduct of appellees because of the legal barrier of estoppel. It is also presented to us for the purpose of proving the defense of estoppel in appellant’s claim for damages.

In view of the law pronounced by the foregoing authorities, we have concluded that the evidence offered by the ap-pellees in support of their motion for summary judgment is sufficient to establish the defense of estoppel and thereby defeat appellant’s claim for damages. As we view it, the evidence conclusively shows that irrespective of any misfeasance or non-feasance on the part of the appellees, appellant was estopped as a matter of law to claim his right to re-employment. The defense of estoppel having thus been shown to exist as a matter of law, the question of whether appellees were guilty of misfeasance or nonfeasance becomes immaterial. Since appellant’s claim against the railroad for re-employment was barred by estoppel, his claim for damages against appellees for miéfeasance and nonfeasance in the prosecutioh of his claim would likewise be barred for the same reason. That is to say, appellant having alleged and proved in a former judicial' proceeding in this state that he was totally and permanently disabled, he will not now be heard to say in this suit that he was not totally and permanently disabled for the purpose of establishing a cause of action against ap-pellees for misfeasance or nonfeasance in presenting his claim before the NRAB. As we view it, the evidence was sufficient to establish facts which, if proven at the trial, would establish the defense of estop-pel and thus entitle appellees to an instructed verdict.

The fact that appellees failed to perfect the appeal to the NRAB within the six months time as provided by the statute would not alter the situation because even though the appeal was filed late, the record conclusively shows that the NRAB nevertheless accepted the appeal on his claim for re-employment and determined same on its merits. Consequently, the conduct of appel-lees in this respect could not as a matter of law have been a cause in fact of the adverse decision denying appellant the right to return to work.

While the record does show that because of the late filing, the NRAB refused to consider that portion of appellant’s appeal in which he claimed back pay commencing as of the date he filed his application to return to work, we think the record conclusively shows that appellant suffered no damages as a result thereof. Obviously, if appellant was disqualified from seeking re-employment by reason of his suit against the railroad for total permanent disability, he would have no right to receive back pay, and would not therefore be entitled to assert a claim for damages based upon an alleged substantive right which did not exist.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SAMUEL E. SEMPLE, Special Judge.

license: Public Domain

text:
    Lester J. BLACK, Appellant, v. Perry SANDERS, d/b/a Perry Sanders Plumbing and Heating Company, Respondent.
    No. 52230.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.
    Motion for Rehearing or to Transfer to Court En Bane Denied May 8, 1967.
    James S. Formby, Formby & Paden, and Koenigsdorf, Kaplan, Kraft, Adelman & Fox, Kansas City, for appellant, Lester J. Black.
    John C. Milholland, A. J. Anderson, Har-risonville, for respondent.
   SAMUEL E. SEMPLE, Special Judge.

This is an action by appellant Black for $25,000 damages for personal injuries, and appeal from an order of the trial court sustaining respondent Sanders’ motion for summary judgment.

This suit arises out of a collision which occurred on October 10, 1960, between a truck operated by appellant Black and a truck owned by respondent Sanders and operated by one Willie A. Hayden, an employee of respondent. On October 19, 1960, Hayden filed suit against appellant Black in the Circuit Court of Cass County, Missouri, for damages for injuries sustained as a result of alleged negligence of Black in causing the collision. The case was removed within twenty days to the United States District Court by attorneys representing Black’s liability insurance company. On November 26, 1960, appellant Black, through his own personal attorneys, filed this present action in the Circuit Court of Cass County, Missouri, against respondent Sanders for damages sustained as a result of alleged negligence of Sanders’ employee Hayden in causing the same collision. On February 26, 1962, appellant filed a first amended petition and on June 18, 1962, respondent filed answer to the first amended petition and also filed a counterclaim against appellant. On July 10, 1962, appellant, represented by the attorneys for his insurer, filed a reply to respondent’s counterclaim. Thereafter, counsel for appellant’s insurer settled Hayden’s suit against appellant. In accomplishing the settlement a' release was taken from Hayden which provided:

“It is further understood and agreed that the payment of said amount is not to be construed as an admission of liability upon the part of said persons, firms or corporations hereby released, liability being by him or them expressly denied.”

Appellant’s insurance attorney, on behalf of appellant, also entered into a stipulation of dismissal with Hayden’s attorneys which read as follows:

“Comes now the plaintiff and the defendant, and this cause being fully settled and compromised, they do hereby stipulate and agree that this case may be and is hereby dismissed with prejudice at the costs of the defendant, but this stipulation shall in nowise effect the right of Lester J. Black to prosecute a claim vs. Perry Sanders, Cass County, Missouri, No. 27739.”

This stipulation was filed on November 9, 1962, and on the same date the federal court entered an order of dismissal with prejudice of Hayden’s suit against appellant.

On January 28, 1963, respondent Sanders filed a motion for summary judgment in this action on the theory that the dismissal of Hayden’s claim with prejudice operated as an adjudication on the merits and that the settlement of Hayden’s claim operated to release respondent Sanders whose liability was based solely on the acts of Hayden, his servant. Thereafter, on February 7, 1963, appellant, with leave filed his second amended petition. On March 18, 1963, the court overruled respondent’s motion for summary judgment to appellant’s first amended petition. On June 18, 1963, respondent again filed a motion for summary judgment to appellant’s second amended petition on the same theory that the dismissal of Hayden’s claim against appellant, with prejudice, operated as an adjudication on the merits and that the settlement of Hayden’s claim operated to release respondent Sanders. In opposition to the motion appellant filed an affidavit of the attorney of his insurance company who represented appellant in the claim of Hayden and the settlement thereof. By this affidavit the attorney stated that he was the attorney for appellant Black’s insurance company; that he negotiated the settlement of Hayden’s claim against Black in federal court; that he did not advise Black of the release he obtained from Hayden; that the stipulation of dismissal of the Hayden claim contained an agreement that the dismissal would in no way affect the right of Black to prosecute his claim against Sanders in Cass County Circuit Court, and that he did not represent Black personally.

Appellant also filed his own affidavit in opposition to the motion in which he stated that his insurance company attorneys removed the case Hayden filed against him to federal court and later settled said suit; that the settlement and stipulation of dismissal were made without notice to him and without his knowledge; that he first learned that the case had been settled on February 12, 1963, and that he had never at any time ratified or adopted the settlement or stipulation of dismissal.

On September 13, 1963, the court sustained respondent’s motion for summary judgment. After an unavailing motion to set aside judgment or to grant a rehearing appellant filed an appeal to this court. This appeal was dismissed as being premature because the judgment of the trial court was not final as it did not also dispose of respondent’s counterclaim which was still pending at that time. Thereafter, respondent’s counterclaim having been dismissed, appellant again appeals from the trial court’s decision sustaining respondent’s motion for summary judgment directed to appellant’s second amended petition.

Appellant contends that his present cause of action against respondent Sanders was not barred by the order and stipulation of dismissal with prejudice in the case maintained by Hayden in federal court because the stipulation specifically reserved the right to maintain this action against respondent. Respondent answers this contention hy saying that the dismissal, with prejudice, of the claim of Hayden operates as an adjudication on the merits and when appellant settled Hayden’s suit against him he gave up any rights that he might have to sue Hayden based on Hayden’s negligence and that a release of Hayden from liability would serve to release respondent Sanders whose liability was based solely on the negligent acts of his servant, Hayden. Respondent relies primarily on the rule applied in Keller v. Keklikian, 362 Mo. 919, 244 S.W. 2d 1001, and Max v. Spaeth, Mo.Sup., 349 S.W.2d 1, and cases from other jurisdictions which have applied the rule in the Max case.

Respondent’s contention avoids giving meaning to the settlement and the stipulation filed dismissing Hayden’s claim against appellant and emphasizes only the dismissal provision of the stipulation. In the situation presented here it appears that the rule applied in Max v. Spaeth, supra, and Keller v. Keklikian, supra, relied upon by respondent is not applicable. The circumstances presented by this record are governed by the rule that “[a] liability insurer’s settlement of a claim against the insured, made without the insured’s consent or against his protests of nonliability, and not thereafter ratified by him, will not ordinarily bar an action by the insured against the person receiving the settlement, on a claim arising out of the same state of facts.” Pierson v. Allen, Mo.Sup., 409 S. W.2d 127, 129; Portell v. Pevely Dairy Co., Mo.Sup., 388 S.W.2d 790, 792; Kirtley v. Irey, Mo.Sup., 375 S.W.2d 129, 134.

In considering the effect of the settlement and dismissal of the claim of Hayden against appellant it is apparent from this record that appellant was represented by an attorney employed by his insurer. This attorney on behalf of appellant took a release from Hayden containing a specific protest of liability and entered into a stipulation expressly reserving appellant’s claim against respondent in the Circuit Court of Cass County in order to prevent the very contention now raised by respondent. Appellant has not ratified or admitted any claim or allegation of negligence or fault to the matters alleged by Hayden in his suit, and only those matters have been adjudicated which bar Hayden from further action on his claim, the issues raised by appellant in his claim against respondent having been expressly reserved for future adjudication. Pierson v. Allen, supra, 409 S.W.2d 1. c. 129, 130.

In further consideration of the force and effect of the stipulation of dismissal and the dismissal in the Hayden claim it has been held that “ ‘[a] stipulation is an agreement between counsel with respect to business before a court, and is not one of the usual pleadings, but is a proceeding in the cause and as such is under the supervision of the court * * They are controlling and conclusive, and courts are bound to enforce them.” Pierson v. Allen, supra, 409 S.W.2d 1. c. 130. It has also been stated that “[a] stipulation should be interpreted in view of the result which the parties were attempting to accomplish” and that “ [stipulations varying or altering trial procedure, or waiving the benefit of procedural statutes, have been consistently enforced by our courts in the absence of any claim of fraud, duress or mistake * * Landers v. Smith, Mo.App., 379 S.W.2d 884, 888. It is clear in this case that at the time Hayden’s claim was settled a specific reservation was made that appellant Black could proceed in asserting his claim arising out of the same accident against respondent. The provisions of the stipulation of dismissal with prejudice of the Hayden claim were not as broad or inclusive as those found in Keller v. Keklikian, supra, and Max v. Spaeth, supra, relied on by respondent. In both of those cases the stipulations recited that “all the matters and things in controversy in the above entitled cause having been adjusted, compromised and finally settled.” The distinction drawn as to the Keller and Max cases in Landers v. Smith, supra, is sufficient for distinguishing those cases from the present case because there was not in either of the Keller or Max cases a reservation of the settling party’s right to pursue his own claim.

Respondent contends that the employee Hayden cannot settle his claim against appellant and yet, by his stipulation for dismissal, reserve the claim against his employer, the respondent herein. This contention is without merit as the court in Por-tell v. Pevely Dairy Co., supra, held, in effect, under circumstances similar to the present case that the settlement of an employee’s claim did not bar the continued assertion of a claim against the employer based on the employee’s alleged negligence when the stipulation of dismissal (executed on claimant’s behalf by his insurer’s attorney without his knowledge and without ratification by him) contained a reservation of the right of claimant to pursue his action against the employer.

Respondent also contends that Hayden was released from any liability to appellant because appellant failed to assert his claim as a compulsory counterclaim in Hayden’s suit and thus Hayden’s release from liability served to release his employer, the respondent, from any liability to appellant. It does not appear that the force of the compulsory counterclaim rule should apply here. There is no indication in this record that appellant deliberately waived filing a counterclaim in the Hayden suit. The court in that case, up to the time of the settlement and dismissal, had the discretionary power to permit the appellant, by amendment, to file a counterclaim. Rule 13(f) Federal Rules of Civil Procedure; see also Civil Rule 55.48, V.A.M.R. The case was settled and dismissed without a trial on the merits. Appellant was represented in the case by an attorney employed by his insurer who settled the case on a release specifically protesting and denying liability on behalf of appellant and such settlement and dismissal was obtained without appellant’s knowledge or consent and was not thereafter ratified by him. It does not appear under such circumstances that the failure to file a counterclaim by appellant prior to such settlement and dismissal of Hayden’s claim should act as a bar to any assertion of liability appellant might make against Hayden. See the rule previously cited in Pierson v. Allen, supra, 409 S.W.2d 1. c. 129; Portell v. Pevely Dairy Co., supra, 388 S.W.2d 1. c. 792; Kirtley v. Irey, supra, 375 S.W.2d 1. c. 134.

This is not a case where, if appellant were to proceed on his claim against respondent based on employee Hayden’s negligence and recover a verdict, both appellant and Hayden would be permitted to recover for the negligence of the other because Hayden’s recovery was had upon a release which prohibited construing the settlement as an admission of liability; whereas, a jury verdict in favor of appellant would be an adjudication of liability on respondent based on the negligent acts of his employee Hayden. Pierson v. Allen, supra, 409 S.W.2d 1. c. 131.

Under the circumstances presented in this case and the authorities quoted, appellant should not be barred from asserting his claim against respondent by a proper compromise of the employee Hayden’s claim which reserved to appellant his right to pursue his claim against this respondent. The trial court erred in sustaining respondent’s motion for summary judgment.

Appellant also contends that the decision of the trial court overruling respondent’s motion for summary judgment on the first amended petition was conclusive, and that the doctrine of res judicata applies as no appeal was taken from that decision, and concludes that the motion for summary judgment on the second amended petition, being on the same issue, precluded the court from ruling differently on the second motion. Because of the view taken on appellant’s other contentions it is not necessary to go into this question other than to state that appellant’s argument apparently assumes that the ruling on the motion to the first amended petition was a final appealable order. This assumption is not correct. The ruling on the first motion was made over a month after appellant had, with leave of court, filed his second amended petition. The respondent also had at this time a counterclaim pending. The trial court still had control of the case on the second amended petition and the unresolved counterclaim. Under the complex condition of the pleadings at the time of ruling on the first motion it obviously cannot be said to have been a final judgment.

For the reasons indicated, the judgment is reversed and the cause remanded.

PER CURIAM:

The foregoing opinion by SEMPLE, Special Judge, is adopted as the opinion of the Court.

All concur.


author: SEILER, Judge. DONNELLY, Judge. PER CURIAM:

text:
    Henry A. JOHNSON, d/b/a Johnson Sheet Metal Works, Respondent, v. ESTATE of John L. GIRVIN, Deceased, Appellant.
    No. 52417.
    Supreme Court of Missouri, En Banc.
    April 10, 1967.
    Rehearing Denied May 8, 1967.

      J. H. Spears, West Memphis, Ark., Hal E. Hunter, Jr., New Madrid, for plaintiff-respondent.
    F. Wm. McCalpin, Samuel H. Liberman, St. Louis, for defendant-appellant, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, of counsel.
   SEILER, Judge.

This is an appeal by the executrix from a judgment entered in a second trial of the case, this time before the court, against the Estate of John L. Girvin on three items: (1) $966.40 for piping and duct work on decedent’s gin, about which there is no argument, (2) $5867.80 for construction of a hull burner or incinerator and (3) $1922.-80 for construction of a mote burner, and also against the estate on its counterclaim of $1342.21 for labor and fuel oil expended in keeping the incinerator going. The first trial was before a jury on the same items, resulting in a judgment for plaintiff for $8689.20, the full amount sued for, and a judgment for defendant on the counterclaim for $367.80. On appeal, the judgments were reversed and the cause remanded because the verdicts were considered self-destructive, 370 S.W.2d 163 (Mo.App.). The present appeal was first heard by the Springfield Court of Appeals and by us transferred here on defendant’s application.

The litigation commenced, in 1961, with the filing on April 6, approximately four months after death of decedent, of a claim in probate court in which plaintiff stated “there is due him from the estate of John L. Girvin, deceased, the sum of $9124.80 on account of labor and materials furnished”. The claim was sworn to and contained the proper recitals as to having given credit for all payments and offsets and that the balance claimed was justly due. Defendant did not challenge the sufficiency of the pleading or move for a more definite statement, but joined issue by filing a general denial and then stating as a counterclaim that decedent and plaintiff entered into a verbal contract whereby plaintiff for $5800 was to furnish labor and materials to construct an incinerator, guaranteeing it would automatically burn cotton hulls and refuse from the cotton gin and the soybean elevator as blown into the incinerator and “that if it didn’t work it was his ‘baby’ ”; that the incinerator was built, but not well made, not free from defects of workmanship and materials, would not automatically burn cotton hulls and refuse from the cotton gin and bean elevator and as a direct result, deceased spent $1342.21 for labor and fuel oil in order to burn the refuse, praying judgment for such amount.

The present trial was pretty much of a “no holds barred” contest, with the experienced trial judge, however, in firm control throughout. The estate conceded it owed the $966.40 item for piping and duct work on the gin. On the other items, the record shows the parties were in agreement there was an oral agreement plaintiff would build a hull burner or incinerator for decedent’s gin for $5867.80. The disagreement was over whether the hull burner worked properly and whether a mote burner added later worked properly and, if so, whether decedent was to pay for it. Plaintiff’s case was as follows: plaintiff did sheet metal, welding and gin work and he had done other work at the gin for decedent earlier in 1960. Plaintiff’s agent (his son) and the decedent then entered into an oral agreement that plaintiff would build a hull burner for decedent’s gin for $5800 plus sales tax (defendant produced an invoice which showed $2260 material on the burner, $67.80 sales tax, and $3540 labor and repairs, total $5867.80, but the son said he could not tell how much was labor and how much was material, that they wrote it up this way so they wouldn’t have to charge decedent sales tax on $5800, that the undertaking was a contract and $5867.80 was the agreed price). The son drew a rough sketch of what he had in mind, based on a shop drawing of an all metal incinerator made by another concern, from which he had built other burners. The decedent told him to build the burner. Plaintiff’s son proceeded accordingly, following generally the plans and specifications of the shop drawing, but modifying it to fit the size of the Girvin gin. However, Mr. Girvin said it was not as high as it was supposed to be, so at plaintiff’s expense, the burner was extended in height ten feet, making it thirty feet high. Mr. Girvin then said the burner was all right and if plaintiff would stop the motes (there was a good deal of disagreement about just what a mote is, the descriptions ranging from its being a small, immature seed with perhaps a wisp of cotton clinging to it, light enough to float in the air, highly inflammable, to a much heavier conglomeration of cotton refuse, including stick and green leaf and hard to burn) from coming out of the top he would pay plaintiff. Plaintiff’s evidence was that after the hull burner was raised' to the requested height the further understanding was that anything else that went on it would be paid for by decedent and decedent told the son to stop the motes from coming out.

To do so plaintiff’s son built a mote burner to one side of the hull burner. The cost of the material which went into the mote burner, 14-gauge black iron, was $760 and cost of the labor was $1140, both of which plaintiff’s son testified were fair and reasonable prices, with sales tax of $22.80. Plaintiff’s evidence was that both the hull burner and the mote burner operated perfectly when properly handled; that after the mote burner was installed decedent complimented plaintiff’s son on it.

Defendant’s case was that plaintiff’s son assured decedent the hull burner would burn all the refuse he had at the gin, that plaintiff would make it work; that the hull burner was defectively designed and would not burn the hulls, that unburned hulls would build up to the point where the burner would choke and the gin had to be shut down until the burner could be unchoked; that the hull burner would ignite the motes, which would float out the top; that plaintiff’s son was called back a number of times to make adjustments and finally put on a mote burner, which did not work either, as it would become clogged with unburned mote material after a short time; that pressure and fire would build up to the point it would blow out around the bottom edges; that decedent had no agreement to pay for the mote burner and no one on decedent’s side knew of any such charge until the claim was filed in probate court; that decedent had to station a man in the hull burner with a rake and can of fuel oil to keep the hulls free and burning, which cost defendant $1342.21.

While plaintiff only had two witnesses that the burners operated properly as against five for the estate that they did pot, the trial court was in the best position to resolve these factual disputes and decided them in favor of plaintiff, which is also what the jury apparently did in the first trial. Defendant contends the judgment is contrary to the overwhelming weight of the evidence. While there is ample evidence to support a finding either way at the trial level, we do not find anything in the cold record sufficiently convincing for us to make a factual determination different from the trial court’s.

Once the factual dispute is resolved, defendant’s main contentions are that the claim filed in probate court, with no itemized statement attached, is so defective neither the probate nor circuit court acquired jurisdiction and plaintiff’s claim should be dismissed in entirety; that plaintiff cannot recover on the hull burner because no claim founded on contract was filed, nor was there any proof which would sustain recovery in quantum meruit; that plaintiff cannot recover on the mote burner because the claim contained no allegations of quantum meruit in this respect.

None of the above was advanced in the first trial, judging from the opinion in 370 S.W.2d 163. There, as here, the main dispute was whether the hull burner and the mote burner worked properly. Plaintiff submitted his theory of recovery on the hull burner on a contract basis, requiring the jury to find plaintiff had performed and that the incinerator was not defective. His instruction recited it was admitted there was a contract for construction of the hull burner, to which defendant made no objection. Plaintiff submitted his theory of recovery on the mote burner on quantum meruit. Defendant’s objection to this apparently was limited to a point that the instruction contained a clause referring the jury to other instructions, when there were no such other instructions.

It appears the first time defendant’s present contentions were advanced was at the outset of the present trial, as the basis for an objection to admission of any testimony, which was by the court overruled. We do not believe the trial court committed error under these particular facts. A probate claim is sufficient if it gives reasonable notice to the adverse party of the nature and extent of the claim made and if specific enough so that a ruling thereon will become res judicata of the matters involved, Maus, Probate Law and Practice, Sec. 939, p. 222, citing cases. The parties agree a probate claim is not to be judged by the rules of pleading applied to a circuit court petition and we note Section 472.080(2), V.A.M.S., of the Probate Code dealing with pleadings provides that “No defect of form or substance in any petition * * * invalidates any proceedings after judgment on the application.” When the claim was first filed, at a time when all details should have been fresh in the minds of the various witnesses, the es-táte made no objection to the form of the claim or challenge to the jurisdiction of the court, but instead met the attack head on, with a general denial together with a counterclaim which showed full knowledge of the contract covering the hull burner and the dispute over its operation. The counterclaim, if successful, would have constituted a defense to the claim. The response of the executrix to the claim indicates she received reasonable notice of its nature and extent. She evidently realized the matter involved the work done on the incinerator, which necessarily as both sides knew, involved the additional work done on the mote burner. It is apparent the executrix had sufficient notice to investigate the matter intelligently and defend vigorously.

Despite the above, defendant is asking us to rule the claim is so defective it was a nullity and the court obtained no jurisdiction. If a motion had been made plaintiff should have been required to make the claim more definite and certain, but it was not a nullity, as illustrated by Watkins v. Donnelly, 88 Mo. 322, where the claim read thus: “Estate of Mary A. Troost to J. Q. Watkins, Dr. To services rendered from July, 1869, to February 1872, $2,500”. On appeal by the executor from a judgment in favor of claimant, the court held the statement was vague and that the circuit court erred in not granting the motion of the executors for a more definite statement, but refused to reverse outright and instead remanded for a new trial. See, also, Lamb v. Bush, 49 Mo.App. 337, where, in an action before a justice of the peace, the court held the following statement: “J. D. Bush, Dr. to J. F. Lamb. For work and labor . . . $129.23” was not so barren as not to be amendable, saying at 49 Mo.App. l.c. 339:

“ * * * The meaning of this is that the plaintiff claims of the defendant the sum of $129.32, for work and labor performed by the plaintiff for the defendant. That is the natural interpretation of it; and, hence, it does state, though meagerly and indefinitely, the cause of action for which the plaintiff sues. * * * ”

Also, it has been held the statement of a claim in probate court may be aided by an answer or counterclaim, Hays v. Miller’s Estate, 189 Mo.App. 72, 173 S.W. 1096, 1097, and we think that rule is applicable here. When the claim, answer and counterclaim are considered together it is clear the claim involves the construction of the incinerator and related items. Even at common law, where the rules of pleading were rigid, an omission to state a material fact would be obviated if the pleading of the opposite party supplied the lack, under the rule known as “express aider”, Garth v. Caldwell, 72 Mo. 622, 630. The rule has continued to be used in this state, Butner v. Union Pac. R. Co., 236 Mo.App. 1134, 163 S.W.2d 100, 106. Here the claim stated a definite amount and disclosed it was “on account of labor and materials furnished”. Although the claim did not specify when or where the work was done or for what purpose or at whose request, the answer and counterclaim show the executrix was under no misapprehension as to what transactions were involved and under these circumstances we are not willing to hold the statement was so deficient as not to give the court any jurisdiction.

Furthermore, the claim, answer and counterclaim taken together are specific enough so that the ruling in the case will be res judicata of the matters involved. There have been two trials and there will be two appellate decisions in the books. We do not believe there is any practical likelihood the estate is exposed to any danger of having to pay again at some future time for anything awarded herein. The judgment plainly decides the rights and obligations put in issue between the parties.

Judgment affirmed.

STORCKMAN, C. J., and HOLMAN and HENLEY, JJ., concur.

EAGER, J., concurs in result.

DONNELLY, J., dissents in separate dissenting opinion filed.

FINCH, J., dissents and concurs in dissenting opinion of DONNELLY, J.

DISSENTING OPINION

DONNELLY, Judge.

We are unable to ascertain from the record whether plaintiff’s recovery for construction of the hull burner was on express contract or in quantum meruit.

I understand the principal opinion to hold that a valid claim was stated on a theory of express contract. I reach this conclusion because the opinion does not answer defendant’s contention that “there was no proof which would sustain recovery in quantum meruit.” If the case be viewed as one on express contract, the question is whether a valid claim was stated under § 473.380, RSMo 1959, V.A.M.S. I do not believe that a valid claim was stated on a theory of express contract. Bench v. Egan’s Estate, Mo.Sup., 363 S.W.2d 547. We must recognize that “ * * * if the demand is wholly insufficient, the probate court acquires no jurisdiction to hear and determine the claim and the circuit court will acquire none on appeal.” In re Franz’ Estate, Mo.Sup., 245 S.W.2d 1, 5. I disagree with the inference raised in the principal opinion to the effect that a want of jurisdiction of the subject matter may be waived by failure to move for a more definite statement, by answer, or by going to trial. 21 C.J.S. Courts § 109.

If the case were considered one in quantum meruit, it is possible that plaintiff’s statement of claim is sufficient. This would give the courts jurisdiction over the subject matter of the whole case and would render factitious defendant’s assertion that the courts had no jurisdiction over the subject matter. This question of sufficiency is not yet determined. I would remand the case for this purpose, and, if the question is resolved in plaintiff’s favor, for trial on a theory of quantum meruit as to the hull burner.

I respectfully dissent.

On Motion for Rehearing

PER CURIAM:

In the motion for rehearing appellant says we ignored the case upon which appellant placed major reliance, Bench v. Egan’s Estate (Mo.Sup.) 363 S.W.2d 547. The case is distinguishable. What it held was that the probate claims there filed on account of breach of contract, containing no allegation or statement of facts as to the manner in which the contract was breached, were wholly insufficient. In the Bench case the defendant legal representatives stood on their motion to dismiss on the ground that the claim failed to state a claim upon which relief could be granted. That was not the case here. Here plaintiff started out with a statement which alleged, with a minimum of words, that there was due him from the estate a definite sum on account of labor and materials furnished. This we have held, although subject to a motion to make more definite and certain, was not a nullity. Ten days after the claim was filed defendant aided the claim by filing a counterclaim which furnished sufficient details so far as the contract aspect of the matter was concerned and which made it plain that so far as the hull burner was concerned the executrix knew the breach of which plaintiff was complaining was failure to make payment of the contract price. The court was not presented with any such situation in the Bench case.

Although appellant says in her motion for rehearing the contract on the hull burner was pleaded in her counterclaim on the assumption that plaintiff’s claim was in quantum meruit and for the purpose of limiting the claim to $5800.00, the contract price, this would not lessen the aider aspect of appellant’s pleading, referred to above. We note, too, that no such limited purpose in pleading the contract was mentioned at the trial or in appellant’s brief. The proof at the trial was that both sides were in agreement there was an oral contract to construct the hull burner for $5800.00. The defense was that whether the claim for construction of the hull burner was in contract or quantum meruit, the hull burner did not perform as warranted and had no value to defendant’s decedent, and for that reason the estate owed plaintiff nothing on it.

The counterclaim also cleared the air in some other respects. Plaintiff’s claim was for $9124.80. According to the counterclaim, $5800.00 of this was the contract price on the allegedly defective hull burner (the trial court added $67.80 for sales tax, thus arriving at the amount awarded, $5867.80). The counterclaim disposed of an additional $1334.20 of plaintiff’s claim, by referring to a payment of $367.80, with a balance owed of $966.40 for piping and duct work, as to which there was no dispute. This left $1922.80 and defendant knew from the claim this was for work and labor. In the absence of attack by defendant as to lack of definiteness this was enough to permit evidence (of which there was sufficient) to support a quantum meruit recovery on the mote burner.

The motion for rehearing is overruled.

      . In his findings of fact and conclusions of law the trial court did not undertake to decide whether the claim as filed in probate court was in contract or quantum meruit but allowed $5867.80 with interest as the contract price on the hull burner and $1922.80 with interest as a quantum meruit recovery on the mote burner. The record shows the trial court did not state definitely during the trial whether the court considered the claim to be contract or quantum meruit. It has long been held that “If ‘it is impossible to say with definiteness whether the plaintiff is counting upon an express contract or upon quantum meruit, he will be permitted to recover upon whichever of the two theories his evidence may warrant’ ”, In re Hukreda’s Estate (Mo.Sup.) 172 S.W.2d 824, 826.

        . The statute then, as now, required the claim be in writing, “stating the amount and nature” thereof, Sec. 188, R.S.Mo. 1879.

      . The applicable statute required the plaintiff to file “a statement of the account, or of the facts constituting the cause of action upon which the suit is founded”, Sec. 6138, R.S.Mo.1889.


author: SEILER, Judge.

text:
    KANSAS CITY, Missouri, Appellant, v. Albert C. LEE, Respondent.
    No. 52193.
    Supreme Court of Missouri, Division No. 1.
    April 10, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 8, 1967.

      Herbert C. Hoffman, City Counselor, Richard W. Mason, Jr. Assoc. City Counselor, Kansas City, for appellant.
    W. Raymond Hedrick, Lillie Knight, Kansas City, for respondent.
   SEILER, Judge.

Defendant was charged under a Kansas City ordinance providing as follows:

“Section 23.110. Unlawful to possess a federal stamp. — It shall be unlawful for any person within the corporate limits of Kansas City, Missouri, to possess with intent to use for gambling purposes, a federal wagering stamp, as provided by the provisions of the internal revenue code of 1954, as amended, enacted by the Congress of the United States.
“Each day any person possesses, with intent to use for gambling purposes, within the corporate limits of Kansas City a federal wagering stamp shall constitute a separate offense. Any person violating the provisions of this section shall be guilty of a misdemeanor.”

The trial court found that defendant did possess a federal wagering stamp, but that the ordinance was unconstitutional under the due process clauses of the state and federal constitutions and dismissed the information. The City has appealed.

Kansas City has the power under its charter to suppress and prevent gambling, as respondent agrees in his brief. A federal wagering stamp is a federal occupational tax on persons who are going to engage in the business of accepting wagers, United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. It must be paid before engaging in the business of wagering, Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475. While the possessor of such a stamp is free to show he bought it for an innocent purpose, the City Council of Kansas City as the repository of the police powers of the city would be justified in viewing with suspicion and concern the possession of such stamps by its residents. A federal gambling stamp bears a reasonable relationship to gambling, as, for example, burglary tools do to burglary. The Council could reasonably conclude that there was likely to be less gambling in Kasnas City if it prohibited the possession of such stamps than if there were no such prohibition. The federal statute provides payment of the federal tax shall not exempt any person from any penalty provided by a law of the state for engaging in the same activity, Title 26, Sec. 4422, U.S.C.A.

The ordinance is directed against possession with certain intent of an article which can reasonably be expected, if something is not done about it, to be used to violate the gambling laws. The same type of proscription has applied in this state for years to possession of burglary tools, State V. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301, V.A.M.S. Section 560.115.

The ordinance does not violate the due process clause of the state or federal constitutions and the trial court erred in so holding. The ordinance is a reasonable regulation, directecl to an article which shows the holder thereof has put himself in a position where he can engage in the business of accepting wagers, is fairly referable to the municipal police power to suppress and prohibit gambling and gambling activities, and hence valid, Passler v. Johnson (Mo.Sup.), 304 S.W.2d 903, 908. Respondent’s main attack on the ordinance is that it makes intent alone an offense without requiring pn overt act. But the ordinance does nqt permit a conviction merely by showing that the defendant has an intent to gamble. It requires proof of possession of a federal wagering stamp with intent to use it for gambling purposes.

In the present case the City proved defendant had possession of the federal stamp. It also showed that when the police went to defendant’s residence with a search warrant, they saw him through the doorway seated at a desk ⅛ the dining room area writing on a pad, which the officer identified as a play pad used in “policy” where the writer keeps a record of what has been bet with him; also there was in the room in the immediate area of defendant another pad showing totals and bets paid off and a bundle of policy slips showing the class and pull. At the same time, in answer to the policeman’s inquiry, the defendant said he did have a federal wagering stamp and if he didn’t, he couldn’t be out on the street writing, that he would be in trouble with the “Revenue” without it and in trouble with the police with it, and that because of the police coming in with search warrants and confiscating his materials he didn’t keep on hand as much as he used to, just one pad he was using for his day’s writing.

Defendant’s case consisted of cross-examination of the arresting officer to the effect that defendant was the only other person in the room besides the officers, that they did not see any physical gambling going on at the time, saw nobody win or lose anything and saw no money transferred. Defendant did not offer any evidence, and, of course, there was no evidence offered that he had the stamp for an innocent purpose.

The trial court, although concluding the ordinance was unconstitutional, also held there would have to be proof of an overt act of gambling in order to constitute an offense under the ordinance if it were valid. Proof of an overt act of gambling would be admissible on the question of intent, but the trial court was in error in holding that the prosecution has to prove overt gambling in order to show an offense under the ordinance.

The judgment is reversed and the cause remanded.

HOLMAN, P. J., HENLEY, J., and KIMBERLIN, Special Judge, concur.

      . While the present ordinance requires both possession and intent, we note there are many statutes and ordinances which make possession of various articles lending themselves to illegal use a violation, with nothing said as to intent: For example, V.A.M.S. Section 563.374, as to punch-boards, etc., and see State v. Container Manufacturing Company (Mo.App.) 364 S.W.2d 20, giving numerous instances of statutes and ordinances making unlawful mere possession of slot machines, pinball machines and punchboards; V.A.M.S. Section 301.390, prohibiting possession of motor vehicles or tires on which the manufacturer’s number has been removed or altered, upheld in Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447, against a charge, among others, that the statute violated due process; Deitch v. City of Chattanooga, 195 Tenn. 245, 258 S.W.2d 776, upholding an ordiance making mere possession of a federal wagering stamp unlawful.


author: EAGER, Presiding Judge.

text:
    Earl E. MANLEY and Sylvia Manley, Plaintiffs-Appellants, v. Herman Lee HORTON, Defendant-Appellant, Claude Headley and Allen Pruwitt, Jr., Defendants-Respondents.
    No. 51959.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 8, 1967.

      Gerritzen & Gerritzen, by Ray A. Gerrit-zen, St. Louis, for plaintiffs-appellants.
    John J. Cole and Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondent, Claude Headley.
   EAGER, Presiding Judge.

This action arose from a two-car collision near the junction of Highway 66 (now Interstate 44) and Highway 109 in St. Louis County on August 3, 1963. In Count 1 Earl E. Manley sought recovery for his injuries; in Count 2 his wife, Sylvia Manley, sued for loss of consortium, assistance and society. Manley was a passenger in a 1961 Falcon station wagon driven by defendant. Headley, both being on the way to work at the Alpha Portland Cement plant. Defendants Horton and Pruwitt were the occupants of the other car, a 1961 Corvair, with Horton driving. A motion of Pruwitt for a directed verdict was sustained; the transcript shows no actual verdict and no judgment in his favor. On Count 1 the jury returned a verdict for defendant Headley but against defendant Horton in the sum of $50,000; on Count 2 it found in favor of both defendants and against plaintiff Sylvia. The amount of the verdict and judgment against Horton was reduced by remittitur to $25,000; judgments were entered accordingly, except as noted. All after-trial motions were overruled. Both plaintiffs have appealed. Defendant Horton appealed but did not perfect his appeal, and it will be dismissed for his failure to prosecute. Only the plaintiffs and defendant Headley have filed briefs. When we refer to “plaintiff” in the singular, we shall refer to Earl Manley. It will not be necessary to digest the pleadings, for no point is made concerning them.

Headley was driving south on Highway ,109 and crossed dual lane Highway 66 on an overpass or viaduct; thence, he made a sharp turn to his left and proceeded down a ramp for approximately 465 feet to reach the eastbound lanes of 66. At the end of the ramp a “merging” lane began, and there was a “yield” sign; the length of the merging lane was 545 feet of full width, plus an added distance of 100 feet or more where it tapered to a point. The highway inclined slightly upward from the end of the ramp. The distance from the lower end of the ramp back to the overpass or viaduct was said to be about 500 feet. There was some difference of opinion concerning the view from the ramp back to the viaduct; plaintiff testified that one could see the road back to the viaduct when a “short ways” down the ramp; Headley testified that there was not a good view back under the viaduct until one gets “pretty well down” the ramp. Headley further testified: that he had driven this route many times; that as he neared the end of the ramp (traveling at about 35 miles an hour) he looked back toward the viaduct through his open window, could see for 100 feet or more under it, and saw no car; that he proceeded into the merging lane, but looked back again about where the merging lane “starts to merge with the south lane,” and saw the Horton car; that it was then in the north lane (the passing lane) of the two eastbound lanes; that it had passed under the viaduct, and (at one point in cross-examination) he testified that it was perhaps 600 to 700 feet west of him and that he did not then form any estimate of its speed; that he drove on, gradually “easing” into the south lane, traveling at around 45 miles an hour and had proceeded, with at least 14 or 15 feet of open roadway on his left, for four to six car lengths entirely in the eastbound south lane when his car was struck from the rear; that the right front of Horton’s car struck the left rear of Headley’s; he heard no horn and no sound of brakes; that the Horton car then scraped the left side of Headley’s up to the left front fender, pushing it somewhat to the right, and passed on at an estimated 60-70 miles an hour; the Horton car proceeded on up the road for about a quarter of a mile and stopped on the shoulder; Headley pulled up behind it and a discussion ensued. He further testified: that he asked Horton “How come you hit me right here in daylight, in open traffic?” and that Horton shook his head a little, “like he’d been a little sleepy or dazed” and said that the only explanation he had was that “he must have dozed at the wheel.” The parties exchanged the usual information, and all proceeded on. Headley’s car was equipped with an inside and an outside rear vision mirror; he admitted that he sounded no horn and gave no turn signal. Headley insisted firmly that his car never touched any part of the north or passing lane, and ■ plaintiff fully corroborated him in this. Plaintiff testified that Headley’s car had not been completely in the eastbound highway lane more than two or three car lengths before the impact; that the collision occurred when Headley had traveled about on e-half, the distance of the merging lane; he estimated this point to be 750-800 feet from the viaduct; he never saw the other car until it struck them. No other car was nearby at the time of the collision which occurred about 6:10 a. m.

Defendants Horton and Pruwitt testified by deposition. Both were in the service and were traveling to their homes in Detroit on leave. They left Lawton, Oklahoma (Ft. Sill) at about 7:30 on the preceding evening and had driven straight through except for two or three stops for gasoline, coffee and perhaps a sandwich. The car belonged to Horton; he testified that it was in good mechanical condition. Both testified that they had agreed in advance to split equally the expenses of the trip, to share the driving, to go straight through to Detroit, that they had agreed upon the route to be followed, and that Pruwitt was to be delivered to his residence in Detroit. Pruwitt had driven from about midnight until just after daylight, perhaps 5:00 o’clock. Horton then took over the driving, and Pruwitt went to sleep. He, Pruwitt, knew nothing about the facts of the collision and was awakened by it. Horton testified: that he had slept some on the preceding afternoon, and that he slept also in the back seat while Pruwitt drove; that prior to the collision he was traveling in the right (south) lane, although he first stated the contrary; that he first saw Headley’s car when it was about 5-6 car lengths ahead of him, and that it kept weaving back and forth across the center line; that he sounded his horn and started to pass, but that it moved over at that time and they collided; that the impact occurred when the Headley car was partially in the left or passing lane; that he was then traveling at about 55 miles an hour, Headley at about 50; that the only damage to his car was to the front fender and one right headlight. Horton disclosed an unusual vagueness with regard to distances and periods of time; he had no idea how long a car was; he denied stating that he must have been “dozing.” Defendant Headley, having the benefit of a verdict, is entitled to the most favorable view of the evidence and to all reasonable inferences therefrom. Daly v. Schaefer, Mo.App., 331 S.W.2d 150; White v. Rohrer, Mo., 267 S.W.2d 31.

Plaintiff Earl Manley assigns error in the failure of the trial court to direct a verdict for him against defendant Headley on liability; his counsel say that on Head-ley’s own testimony he was guilty of negligence as a matter of law in that he was on the highway two seconds or less before the collision, traveling 40-45 miles an hour, and. that he must have entered the highway when Horton was not more than 210 feet from the point of impact, assuming the latter’s speed to be 70 miles an hour; that he failed to keep a vigilant lookout in that he did not see the Horton car- at 50, 100 or 300 feet, sounded no horn, gave no signal and did not swerve to his right. In all this plaintiff overlooks the fact that Headley was not entering an ordinary two-way road with a car approaching from behind and traveling in the same direction; he was entering the outside lane of a divided highway, and he testified specifically that when he saw the other car approaching, it was in the passing (or inside) lane. Regardless of the claimed admissions in estimates of time, distances and speeds, we are wholly unwilling to hold, as a matter of law, that one who enters the outer lane of a dual highway from the merging lane under such circumstances is guilty of negligence. The cases cited by plaintiff are distinguishable. Practically all of them involve the negligence of a party in entering an ordinary intersection on a street or highway without keeping a vigilant lookout or without yielding the right of way when the circumstances so required. They recognize that under such situations a mere perfunctory or fleeting glance is not enough, and properly so. The only divided highway case, Hinds v. Kircher, Mo., 379 S.W.2d 607, involved a construction of § 304.012, RSMo 1959, V.A. M.S., regulating speeds on limited access highways when other traffic is entering or leaving the highway. That case is not applicable here.

Aside from that distinction, however, we note the following. Headley did at one time estimate that the impact occurred within two seconds after he got into the south lane of the highway; he also stated at one place that when he first saw the other car it was probably 600-700 feet away. Plaintiff argues that this would mean that Horton must have traveled 600 or more feet in two seconds, which would be impossible. The statements of Headley so relied upon by plaintiff were necessarily estimates. He testified to other and different facts by way of explanation, such as locations and distances traveled, which modified the statements which plaintiff thus singles out. Moreover, a photograph upon which Headley marked the point of impact would seem to indicate that he had traveled much farther than plaintiff claims and considerably longer than two seconds after he first saw the Horton car. Except for two measurements made by plaintiff, all distances and times stated were mere estimates. Those made by Headley were not of such character as to justify a declaration that he was guilty of negligence as a matter of law. Davis v. Kansas City Public Service Co., Mo., Banc, 233 S.W.2d 669, 674; Carlson v. St. Louis Public Service Co., Mo., 358 S.W.2d 795, 800; Smith v. Siercks, Mo., 277 S.W.2d 521; Tunget v. Cook, Mo.App., 94 S.W.2d 921; Dennis v. Wood, 357 Mo. 886, 211 S.W.2d 470, 474; Speak v. Pryor, Mo.App., 355 S.W.2d 431; State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406.

This conclusion becomes inescapable and plaintiffs’ argument concerning time and distance really becomes immaterial when we note again that Headley was, according to his testimony, entering an open lane of a dual highway with no car traveling in that lane, behind him or in front of him, and that it was broad daylight, on a clear, dry day. The somewhat self-contradictory testimony of Horton as to what lane he was in could not be used as the basis for a directed verdict against Headley. The jury was at liberty to find that a person in the exercise of the highest degree of care would not have felt it necessary, after first seeing the car in the other lane, to keep a continuous lookout or watch behind him. Many supposedly reasonable persons do the same thing. The issues of Headley’s lookout, speed, and failure to yield, swerve or warn were properly submitted to the jury and there is no complaint here of the instruction. The verdict of the jury foreclosed both Earl Manley and his wife as against Headley. It is indeed seldom that a court will direct a verdict in favor of a party who has the burden of proof. And the weight of the evidence, a question which plaintiff also raises here, is conclusively determined when the trial court overrules the motion for a new trial, if there is any substantial evidence to support the verdict. Bowe v. Kehr, Mo., 345 S.W.2d 224; Goldman v. Ridenour, Mo., 383 S.W.2d 539.

In considering this point we have chosen to omit any discussion of certain procedural contentions of Headley’s counsel to the effect that this claim of the plaintiffs was not properly raised by motion for a directed verdict and by a sufficient after-trial motion to set aside the judgment and to enter judgment for plaintiff under Rules 72.01 and 72.02, V.A.M.R. We have preferred to rule on the merits, but we do note that a written motion for a directed verdict is to be preferred rather than an oral motion, as is also a statement of the grounds for the motion, at least generally.

The next point made concerns a part of the final argument of Headley’s counsel. That argument, in its context, was as follows: “ * * * It is not whether it could have happened in a certain way, it is whether the plaintiff, who is charging all of these things has caused you to believe, has produced the evidence to cause you to believe they are true. And, if you don’t know, and you don’t from this evidence, you can’t make up your minds whether Headley for instance is, or is not, in any way responsible, then the law says your verdict must be for Mr. Headley and not for the plaintiff; not for the plaintiff against Mr. Headley unless he has caused you to believe that, and has proved that to your satisfaction * * Counsel for plaintiff immediately interrupted with an objection at this point whereupon the Court said: “Well, the jury will be guided by the evidence and instructions, which instructions they will take to the jury room with them and they will apply the evidence to the instructions, and directions are included in the instructions.” Counsel for plaintiff then, out of the hearing of the jury, objected further to the use of the word “satisfaction,” and asked both that the jury be instructed to disregard it and for a mistrial. Counsel for Headley at that time offered to “straighten it out,” the Court “reserved” any further ruling, and counsel stated to the jury that if there was “any question” about the matter he would read Instruction No. 2 (burden of proof) and he proceeded to do so. He then continued: “If the evidence in the case does not cause you to believe, that is the positive duty upon the plaintiff to cause you to believe those propositions. As I told you, anyone with $15.00 can file a lawsuit against anyone else and charge anything, so that’s why the burden of proof — on the plaintiff charging fault on another party, is so important under our system.”

Counsel for plaintiff cite Bell v. Pedigo, Mo., 364 S.W.2d 613, where this Court held that the use of the terms “to the satisfaction of” or “to the reasonable satisfaction of” the jury in a burden of proof instruction would be deemed reversibly erroneous after the printing of that opinion. That has since been the law and, moreover, the form of the burden of proof instruction is now fixed by MAI 3.01, which was given in this case. The word “satisfaction” should not have been used in argument here, but the caution given by the Court, by implication at least, told the jury that the instructions were controlling, Kiger v. Terminal Railroad Ass’n of St. Louis, Mo., 311 S.W.2d 5, 12, and counsel, by way of apology, read the entire instruction to the jury. Under the circumstances we hold that the jury could not have been misled, and that thq Court did not abuse its discretion in failing to give further relief. Collins v. Cowger, Mo., 283 S.W.2d 554, Kiger, supra. The Court could and should have eliminated all question by a simple statement to the jury that “satisfaction” was not the proper (est of the burden of proof.

In the next assignment counsel claim that the Court erred in “permitting” Headley’s counsel to engage in a colloquy with plaintiffs’ counsel during the latter’s final argument. The manner concerned a strain or injury sustained by plaintiff while at work seven months after the accident, and statements of plaintiffs’ counsel that plaintiff had not made any Workmen’s Compensation claim therefor. The remarks of Headley’s counsel (now complained of) were, in substance, that he did not know what plaintiff had done and had made no effort to check into it. The very simple answer to the present contention is that plaintiff’s counsel made no objection to the remarks at the time and requested no relief from the Court. See: Blanford v. St. Louis Public Service Co., Mo., 266 S.W.2d 718; Lynn v. Kern, Mo., 323 S.W.2d 726. The only request for any relief was made by Headley’s counsel because of plaintiffs’ improper argument, and the Court very pointedly told the jury that the whole discussion of any such claim was irrelevant and that there should be no more such interchanges. Aside from the failure of plaintiffs’ counsel to object or ask any relief, the record discloses that plaintiffs’' counsel was at least equally at fault in introducing the subject both in evidence and in argument, and in engaging in the colloquy; the occasion was certainly not one of such magnitude that the Court was required to do more of its own volition. The point is of no merit.

The next point is that defendant Pruwitt’s motion for a directed verdict was improperly sustained. We note again that the Court failed to require the rendition of a verdict and to enter any judgment in his favor. There is no respondent’s brief here for Pruwitt, but we must consider and rule the question on plaintiffs’ appeal. Some independent research has been necessary. Plaintiffs’ counsel insist that on the admissions of Horton and Pruwitt we should direct that a judgment of $25,000 be entered against Pruwitt. The admissions consisted of their testimony by depositions that they had arranged for the joint trip to Detroit in Horton’s car, had agreed on the route and the sharing of expenses equally, that Pru-witt was to be delivered to his home, that they would drive straight through, and that they would divide the driving. These things, say counsel, created a joint venture as a matter of law. We do not find this to be true. The stated elements are matters to be considered in such a determination, but they are not conclusive, jointly or severally. Prosser on Torts 2nd Ed., § 65, pp. 363-366; Restatement of Torts 2nd, § 491, pp. 548-551; Matta v. Welcher, Mo. App., 387 S.W.2d 265. According to the Restatement, supra, the requirements are: f‘(l) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Whether these elements exist is frequently a question for the jury, under proper direction from the court.” In Prosser, supra, at pp. 365, 366, the author says: “The prevailing view is that a joint enterprise requires something, beyond the mere association of the parties for a common end, to show a mutual ‘right of control’ over the operation of the vehicle — or in other words, an equal right in the passenger to be heard as to the manner in which it is driven. It is not the fact that he does or does not give directions which is important in itself, but rather the understanding between the parties that he has the right to have his wishes respected, to the same extent as the driver. * * * The essential question is whether the parties, can be found by implication to have agreed to an equal voice in the management of the vehicle, and this is frequently a question of fact for the jury.” The admissions of these parties did not, as a matter of law, show a joint right of control. While this doctrine is frequently used to show contributory negligence on the part of the non-operator, it is seldom used to create liability on his part to a third person. Prosser, supra. However, we see no legal reason why it should not operate both ways.

Most of the Missouri cases involving this theory of imputed negligence have been based primarily upon the fact that the passenger was the owner of the car and thus automatically entitled to a right of control. Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014; James v. Berry, Mo.App., 301 S.W.2d 530; Kieffer v. Bragdon, Mo.App., 278. S.W.2d 10; Hill v. St. Louis Public Service Co., Mo., 64 S.W.2d 633; Tener v. Hill, Mo.App., 394 S.W.2d 425; Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366. And see, by way of comparison, Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, where the wife, who did not participate in the ownership of the car, was held not liable because the circumstances did not indicate a joint control. In Counts v. Thomas, Mo.App., 63 S.W.2d 416, the son. of the owner allowed another boy to drive for their common purpose; the son was held liable as one having a joint right of control.

The very recent case of Matta v. Welcher, Mo.App., 387 S.W.2d 265, involved facts rather startlingly similar to. ours. The Court held, after a very informative discussion of the subject, that the-evidence was sufficient to permit an inference of a joint enterprise, but that this was a jury issue. Some doubt is raised in our case by the fact that Pruwitt was asleep at the time of the accident, but we conclude that this did not necessarily eliminate the issue of his right of control on the trip. Under a proper instruction at another trial the jury should consider the liability of Pruwitt. The damages have already been fixed by the previous jury verdict and the remittitur.

The last point made is that the trial court erred in not sustaining the motion of Sylvia Manley because her evidence of loss of “consortium, assistance, society and care” was undisputed and the jury found that her husband had suffered a substantial injury. She testified in considerable detail to her husband’s pain, treatments, and disabilities. This court has held twice, with three dissents, that a wife has a right of action for loss of consortium arising out of injuries to her husband. Novak v. Kansas City Transit, Inc., Mo., Banc, 365 S.W.2d 539; Shepherd v. Consumers Co-Op. Ass’n, Mo., Banc, 384 S.W.2d 635. Those cases have not been overruled. We amended our Rule 66.01 so as to require that such an action be joined with the action of the other spouse. As to defendant Headley, the wife is foreclosed by the jury’s verdict. As to defendant Horton, the verdict against her is so inconsistent with the verdict in favor of her husband and against Horton, that it should be set aside and a new trial granted.

The appeal of defendant Horton is dismissed for his failure to perfect and prosecute it under our rules. The judgments in favor of defendant Headley and against both plaintiffs are affirmed. The trial court is directed to set aside its order sustaining the motion of defendant Pruwitt for a directed verdict (there being no judgment of record thereon) and to grant plaintiff Earl Manley a new trial against said ■defendant on the question of liability only, holding Earl Manley’s judgment against defendant Horton in abeyance pending the result thereof. The judgment in favor of ■defendant Horton and against Sylvia Manley is reversed, and the trial court is directed to grant her a new trial against that defendant on the issue of damages only; it is further directed to grant Sylvia Manley a new trial on both liability and damages as to defendant Pruwitt.

It is so ordered.

FINCH and DONNELLY, JJ., and MOORE, Special Judge, concur.