author: WELBORN, Commissioner.

text:
    COMMONWEALTH INSURANCE AGENCY, INC., a Corporation, and Walter A. Klein, (Plaintiffs) Appellants, v. Philip ARNOLD, (Defendant) Respondent.
    No. 50775.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 10, 1965.

      Harry Gershenson, J. E. Sigoloff, St. Louis, for (plaintiffs) appellants.
    Harold A. Thomas, Jr., Nelson W. Hartman, Fordyce, Mayme, Hartman, Renard & Stribling, St. Louis, for respondent.
   WELBORN, Commissioner.

Plaintiff Commonwealth Insurance Agency and its president, plaintiff Walter A. Klein, filed an action for declaratory judgment against defendant Philip Arnold, who, on behalf of Underwriters at Lloyd’s London, had issued to plaintiffs a policy of “Errors and Omissions Insurance” for the operation of plaintiffs’ insurance business. The petition sought a declaration of defendant’s liability on the policy issued to plaintiffs as it related to a claim against them which was the subject of an action by the Golub Corporation and others against plaintiffs in the St. Louis Circuit Court. On defendant’s motion in the present case, the trial court dismissed plaintiffs’ petition. Plaintiffs have appealed from such order.

Defendant issued to plaintiffs a policy of “Insurance Brokers and Agents Errors and Omissions Insurance” for a period from August 22, 1955 to August 22, 1958. The policy was subsequently extended for two additional three-year terms. The policy undertook to indemnify plaintiffs “against any claim or claims for breach of duty as Insurance Brokers * * * which may be made against them (during the term of the policy) by reason of any negligent act, error or omission, whenever or wherever committed or alleged to have been committed, on the part of the Assured” in its business. The limit of liability was $100,-000 in any one policy year with a deductible amount of $2,500 for any claim.

Among the conditions of the policy was one that the assured should not admit liability or settle any claim without the written consent of the insurer, “who shall be entitled at any time to take over and conduct in the name of the Assured the defence of any claim.

“Nevertheless, the Assured shall not be required to contest any legal proceedings unless a Lawyer (to be mutually agreed upon by the Assured and the Underwriters) shall advise that such proceedings should be contested.”

A further condition read:

“5. This Insurance shall not indemnify the Assured in respect of any claim made against them
“(a) * * * *
“(b) brought about or contributed to by any commingling of or inability or failure to pay or collect premium, claim or tax moneys,
“(c) brought about or contributed to by the dishonest fraudulent, criminal or malicious act or omission of the Assured or any employee of the Assured, or
“(d) * * * *."

Plaintiffs’ petition alleged that an action was filed against them in the St. Louis Circuit Court on January 3, 1962, by the Golub Corporation and associated companies. Copies of Golub’s original and first amended petitions were attached to plaintiffs’ petition in this case and. incorporated therein by reference. Golub’s petition alleged that, in 1955, plaintiff Klein, acting on behalf of plaintiff Commonwealth Insurance Agency, placed certain public liability insurance for Golub and its associated companies, operators of retail stores in New York and Massachusetts. The insurance was with Underwriters at Lloyd’s, London, for a three-year term, effective August 6, 1955. Golub’s petition alleged that, in August, 1958, they directed plaintiffs to extend and renew the coverage which the Golub companies had had for the preceding three years and that plaintiffs thereafter told Golub that the extension had been effectuated as directed; that, on or about October 1, 1958, plaintiffs mailed to Golub a cover note of Underwriters at Lloyd’s, purporting to extend the prior coverage.

Golub’s petition further alleged that, although they had directed plaintiffs to renew and extend the prior coverage with Lloyd’s, and that, although plaintiffs advised Golub that such extension had been effectuated, plaintiffs had, without Golub’s knowledge or authority, placed the insurance with British Commercial Insurance Company, Ltd., which was not an underwriter at Lloyd’s. The petition further alleged that British Commercial Insurance Company was unable to pay claims against Golub because it entered into liquidation proceedings in September, 1959. Golub alleged that, because of the default of British Commercial Insurance Company on its policy, Golub had been required to defend and settle claims for $25,000 and further pending claims involved a liability of $25,000. Golub asked judgment for $50,000 loss which it claimed to have suffered due to plaintiffs’ “negligence and fraud.” Golub’s amended petition is essentially the same as its original, except that it charges negligence and fraud in separate counts.

Plaintiffs’ petition in this case alleged that they gave defendant “immediate notice in writing” of the claims of Golub and of the institution of this action, but that defendant had denied any obligation to indemnify plaintiffs in respect to such claims on the grounds that they are excluded from the coverage of the insurance by Condition 5(b) set out above.

Plaintiffs alleged that they contended that such condition is not applicable and that by reason of the conflicting claims of the parties as to the interpretation of the policy relative to the coverage and the settlement and defense of claims, irreparable damages might be done plaintiffs unless the rights of the parties under the policy are determined in advance of the trial of Golub’s action.

Plaintiffs’ petition asked a declaration of the rights of the parties under the insurance policy, the coverage provided thereunder, and that under a correct construction of the policy, the claim of Golub is not excepted by Condition 5(b); that defendant is liable to indemnify plaintiffs against the claim of Golub; that if the claim is to be contested, defendant be required to agree with plaintiffs upon a lawyer who shall advise that the action of Golub be contested, or of defendant’s obligation to indemnify plaintiffs.

Defendant filed a motion to dismiss on the grounds that plaintiffs’ action was premature and presented no justiciable controversy because it did not present a definite state of facts ripe for determination and admitting of specific relief by way of a decree conclusive in character and determinative of the issues; that the petition presented merely a difference of opinion on a legal question and requested the court to issue an advisory opinion on a speculative and hypothetical situation which may never come to pass. The trial court sustained defendant’s motion and, after plaintiffs’ motion to set aside the order or, in the alternative, for a new trial, had been denied, this appeal was taken.

The essential question on this appeal is whether or not plaintiffs’ petition alleges a state of facts which produces a justiciable controversy between plaintiffs and defendant. We recognize, as plaintiffs assert, that their petition is to be construed favorably to them, giving them the benefit of every reasonable and fair intendment in view of the facts alleged. City of Creve Coeur v. Creve Coeur Fire Protection District, Mo.Sup., 355 S.W.2d 857, 859. The exhibits attached to the petition, consisting of the insurance policy and Golub’s petitions, are a part of plaintiffs’ petition for all purposes, Civ.Rule 55.14, V.A.M.R., and are to be considered in passing upon its sufficiency. M.F.A. Mutual Insurance Company v. Hill, Mo.Sup., 320 S.W.2d 559, 562(2).

We have several cases which have described the “justiciable controversy,” essential before a court may exercise its jurisdiction in response to a petition for a declaratory judgment. “(T)here must be a sufficiently complete state of facts presenting issues ripe for determination * *." Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 72. The determination must provide “specific relief through a decree of a conclusive character.” Transport Mfg. & Equip. Co. v. Toberman, Mo.Sup., 301 S.W.2d 801, 806. Declaratory judgment may not be used to “adjudicate hypothetical or speculative situations which may never come to pass.” M.F.A. Mutual Insurance Company v. Hill, Mo., 320 S.W.2d 559, 564. “A mere difference of opinion or disagreement or argument on a legal question does not afford adequate ground for invoking the judicial power.” Tietjens v. City of St. Louis, supra. “(W)here the record furnishes insufficient facts from which to determine liability, and advice concerning the respective duties and obligations of the parties is all that is asked, a court will not pass on (the question presented).” City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W.2d 411, 413.

Application of these general principles to specific cases is not a simple matter. “The only safe guide is an analysis of the precedents in which declaratory judgments have been granted and declined.” Bor-chard, Declaratory Judgments (2d ed.), p. 56. Controversies involving insurance policies have been a fruitful source of declaratory judgment litigation. Gur courts have considered several controversies involving insurance.

In Pennsylvania Casualty Co. v. Suburban Service Bus Co., Mo.App., 211 S.W.2d 524, relied upon by plaintiffs as precedent for their quest for relief in this case, the insurer had paid $19,100 in claims under a policy with a $20,000 limit. After such payments, $11,500 on judgments remained outstanding which could be settled for $5,-500. Plaintiff demanded of the insured the difference between that amount and the $900 remaining within the policy limits. Upon defendant’s refusal to pay the amount demanded, declaratory judgment was recognized as an appropriate remedy to determine whether or not the insurer was entitled to the amount demanded.

In Lamb v. New York Life Insurance Company, Mo.App., 377 S.W.2d 148, declaratory judgment was held to be a proper procedure to determine the interest of plaintiff as the beneficiary of policies taken by plaintiff’s father to provide plaintiff’s education. A divorce decree had limited the father’s right to borrow on the security of the policies and the controversy was over the effect of a loan thereafter made by the father. Declaratory judgment was held to lie against the contention that the son should be compelled to surrender the policies for their cash value and to sue the insurer for the balance to which he claimed to be entitled.

Fidelity & Casualty Co. of New York v. Western Casualty & Surety Co., Mo.App., 337 S.W.2d 566, involved a controversy between the insurer of the owner of a motor vehicle and the insurer of its driver at the time of an accident. The insurer of the owner brought the action against the insurer of the driver, joining all persons having claims arising out of the accident. A decree was sought declaring the rights and obligations of the respective insurers. The court found that “the controversy had ‘jelled’ as evidenced by the filing of the various actions * * * by the date of trial * * *” so that a declaratory judgment would lie. 337 S.W.2d 571.

Plaintiffs also cite and rely upon M.F.A. Mutual Insurance Company v. Quinn, Mo.App., 259 S.W.2d 854, in which the question of whether or not a policy was in force at the time of an accident, and M.F.A. Mutual Insurance Company v. Southwest Baptist College, Inc., Mo.Sup., 381 S.W.2d 797, in which the question of whether or not fire policies were in force at the time of a loss, were determined in declaratory judgment proceedings. However, in neither of those cases was any question raised as to the propriety of the action.

Plaintiffs also rely upon Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000, and United States Fidelity & Guaranty Co. v. Pierson, 8th Cir., 97 F.2d 560. In Haworth, declaratory judgment was held to be a proper remedy to resolve a dispute between an insurer and its insured as to whether or not the insured was totally and permanently disabled within the meaning of the policy provisions for benefits in such event. The court held that the case called “for an adjudication of present right upon established facts.” In Pierson, the question was whether or not the insurer was required to defend, in accordance' with the terms of its policy, an action against its insured.

Plaintiffs also cite Maryland Casualty Co. v. Tindall, 8th Cir., 117 F.2d 905, in which declaratory judgment was held sot to lie in an action by an insurer to resolve its claim that an employee’s suit for damages for injury was not within the terms of its workmen’s compensation policy which excluded “occupational disease.” The employer contended that his claim was for an accidental injury. The court refused to determine the matter on declaratory judgment because the issue presented was hypothetical, there being no method for determining what the facts might be found to be in the damage action. (Borchard disagrees with this conclusion. Op. cit., p. 636, footnote 6.)

Among eases cited by defendant is M.F.A. Mutual Insurance Company v. Hill, Mo. Sup., 320 S.W.2d 559. In that case, declaratory judgment was held not available in an action by an insurer to terminate its obligation to additional insureds under its policy because of the violation of the cooperation clause by such additional insureds. The court pointed out that the alleged additional insureds were not claiming the benefit of protection under the policy and therefore the action sought to adjudicate a hypothetical or speculative situation which may never come to pass. 320 S.W.2d 564(9).

Hill involved a clearly hypothetical situation. Certainly the situation here presented is not hypothetical in the sense of Hill. Golub claims to have suffered a loss due to either the negligent or fraudulent conduct of plaintiffs. There is no reason to speculate whether or not Golub is going to press a claim against plaintiffs. They have done so. We have, therefore, a concrete, not a hypothetical, situation.

In a situation such as this, by far the greater number of actions for declaratory judgment to determine whether or not a particular claim is within the coverage of a policy of insurance are brought by the insurer. See Annotation, “Application of declaratory judgment acts to questions in respect of insurance policies,” 142 A.L.R. 8. In such case, the fact that no judgment has been obtained against the insured so that the amount, if any, of the insurer’s liability is at the particular stage of the proceedings unknown is no bar to the insured’s action to disclaim liability, which action may, of course, terminate in a judgment declaring the insurer liable for any loss. Borchard, op. cit., pp. 641-655.

Although a declaratory judgment action by an insured to establish the insurer’s liability is the more infrequent form which the proceeding assumes, we perceive no reason why the elements of a justiciable controversy may not be present in either situation. See Cotton v. Iowa Mutual Liability Ins. Co., Mo.App., 260 S.W.2d 43, 51; Franklin Co-Op. Creamery Ass’n v. Employers’ Liability Assurance Corp., 200 Minn. 230, 273 N.W. 809; Southern Underwriters v. Dunn, 5th Cir., 96 F.2d 224; Malloy v. Head, 90 N.H. 58, 4 A.2d 875, 123 A.L.R. 941.

However, this case presents an additional problem. Plaintiffs’ petition alleged that defendant denied liability on the ground that the claim of Golub was excluded under Condition 5(b) of the policy. Even if the validity of this ground for denial of liability should be resolved in plaintiffs’ favor, they would still be confronted by the fact that Golub’s claim charges plaintiffs with both negligence and fraud. This is obvious on the face of Golub’s petition. Condition 5 (c) of the policy, a part of plaintiffs’ petition, excludes claims based upon fraud on the part of the assured. That defendant expects to rely upon this exclusion should Golub recover on the fraud count is clear from his brief here.

The trial court had no way to know on which, if any, ground Golub might prevail in its action. Nor do we. Golub is not a party to this action and there is no way by which a final determination may be made in this case of the basis of Golub’s claim. The situation here presented is similar to that found in Prashker v. United States Guarantee Company, 1 N.Y.2d 584, 154 N.Y.S.2d 910, 136 N.E.2d 871. There the insured sought a declaration regarding the obligation of an insurer on an aviation liability policy. An airplane crash had produced an action against the insureds. The petition in such action alleged numerous grounds of liability, some of which were within and some without the exclusionary provisions of the policy. In holding that the petition in such regard did not state grounds for a declaratory judgment, the court stated (136 N.E.2d 874):

“Under that holding the facts might be decided in one manner in the declaratory judgment action, and differently in the principal actions, with the consequence that the liability of the carrier or lack of it might-be decided on facts other than those to be established between the parties in the main action or actions. This policy is one of indemnification; it is clear that the liability of the insurance company depends upon the basis for liability which is adjudicated against the assureds in the main actions. Unless the insurance company would be liable under the policy on the facts underlying each theory of liability pleaded against the assureds in the complaints in the pending negligence actions, it would be premature to entertain jurisdiction of a declaratory judgment action before it can be known whether or not the loss would be covered by the policy. Some of the grounds pleaded may be sustained and others not. * * * It would be premature to attempt to decide in a declaratory judgment action, without a jury, what the Weissman estate is going to prove later at the trial or trials of the negligence actions. The complaint does not state a presently justiciable issue to be decided by a declaratory judgment.”

In the circumstances of this case, plaintiffs’ petition did not present a state of facts susceptible of determination through a conclusive judgment in this action. Inasmuch as no present duty is imposed upon the insurer under the policy here, plaintiffs are not prejudiced by the denial of a declaratory judgment at this stage of the proceedings. They are confronted with an element of uncertainty as to defendant’s ultimate liability. However, that uncertainty cannot be finally resolved at this time.

Inasmuch as the plaintiffs’ petition incorporated fully Golub’s statement of its claim and the insurance policy, the basis of the controversy between plaintiffs and defendant was fully shown and there was no error on the part of the trial court in sustaining the motion to dismiss without granting plaintiffs leave to amend their petition.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    Samuel Robert CROOK, Appellant, v. Ralph Wayne DOOLEY by his Guardian Ad Litem, Ralph Marvin Dooley, Respondent.
    No. 50783.
    Supreme Court of Missouri, Division No. 1.
    May 10, 1965.

      Ike Skelton, Jr., W. R. Schelp, Lexington, and Dick B. Dale, Jr., Richmond, Skelton & Bradley, Lexington, of counsel, for appellant.
    A. Lamkin James, Marshall, A. V. Mc-Calley, Richmond, James & Butterfield, Marshall, of counsel, for respondent.
   HIGGINS, Commissioner.

Action for $63,668.43 damages for personal injuries. Verdict and judgment were for defendant and plaintiff has appealed.

A collision between a tractor driven by plaintiff and an automobile driven by defendant occurred November 1, 1962, on Route A north of Hardin, Missouri, at a point where a 1-lane bridge spans a drainage ditch. Route A, also known as “Ozark Short Line,” is a black-top road, 17 feet wide, and is approximately level for six tenths of a mile south of the bridge. Exhibit 2 is an engineer’s profile of the road showing .57 per cent decline in the 600 feet immediately south of the bridge, a drop of approximately 6 inches per 100 feet. The bridge is 15 feet 4 inches wide and 29 feet long; the roadway on the bridge is 11 feet wide. Exhibit 10 shows three black and white “candy stripe” reflector boards on each side of the road at each end of the bridge and they are staggered as the road narrows from its general width to the width of the bridge. Exhibit 1 shows a yellow and black “one lane bridge” sign 500 feet south of the bridge. The narrowing of the roadway occurs in the 60 feet immediately south of the bridge. There is a white center line which ends two or three hundred feet south of the bridge. The visible part of the bridge is constructed of five concrete posts interlaced with metal pipe rails on each side of the roadway. A gate 70 yards south of the bridge on the west side of the road leads to a field on plaintiff’s farm and a lane from plaintiff’s home enters Route A immediately north of the bridge. Defendant was an 18-year-old single man living with his parents on a farm also on Route A. He worked at Western Auto Store in Lexington and drove back and forth daily between home and work. Both parties were familiar with the scene and with the traffic and vehicles which used the road.

Plaintiff placed the time of collision at 5:35 p. m. He testified also that it had not rained there that day; that sundown was at 5:18 p. m., and that there was enough light to see a quarter of a mile at the time of the collision. Defendant judged the time of collision at 5:45 p. m., and stated that it was dark and a light mist had made the road wet.

Just prior to the collision plaintiff drove his unlighted tractor onto Route A from the field gate and went north toward the bridge. He testified that after he had entered the narrow part of the road and was 40 or 50 feet south of the bridge, he heard a car behind him accelerate, after which he accelerated his tractor. He judged the speed of his tractor at 3 to 4 miles per hour prior to acceleration, and testified that he did not change gears because that would require a stop. He could only go straight ahead due to the ditches on either side of the narrowed roadway. He estimated the speed of the car at 60 or 65 miles per hour, although on deposition he had estimated the speed at 75 to 80 miles per hour. No other vehicles or obstructions were present on the road.

Plaintiff’s case also included testimony from defendant’s deposition, which was that defendant drove the 1957 Chevrolet that collided with the rear of plaintiff’s tractor; that it was dark and misting rain; that he judged the plow at the rear of the tractor to be 450 feet away when he first saw it; that he saw the plow 450 feet ahead with his headlights; that he judged he could see around 500 feet ahead with his lights; that when he first saw the plow he was going 45 to 50 miles per hour, and that the tractor was then starting onto the bridge; that his automobile and brakes were in good mechanical condition and that he had new snow tires on his car.

Pearly Lee Jones, Hardin City Marshall and Ray County Deputy Sheriff, received a call about the accident between 5:30 p. m. and 6:00 p. m. He saw plaintiff’s tractor at the center of the bridge headed toward the east railing with the plow in an upright position. He stated it was “dusky” when he arrived.

Trooper John W. Wright of the Missouri State Highway Patrol arrived at 7:30 p. m. It was then dark and wet. He found the tractor near the center of the bridge with the front part in the bridge railing. It was damaged in the front and rear. Defendant’s automobile was to the rear of the tractor with damage-to its front. He found skid marks running 77 feet to the automobile. He placed the point of impact near the south end of the bridge with the tractor on the bridge at impact. He also stated that there were no shoulders on the road leading to the bridge. Defendant told him that his speed was 45 miles per hour.

Sergeant Frank Wessling of the Kansas City, Missouri, Police Department, was qualified as an expert to testify as to stopping distances. He was asked to assume that plaintiff’s tractor was traveling from 3 to 4 miles per hour as it started on the bridge; that the 1957 Chevrolet Sedan had its brakes on in good mechanical condition, equipped with new snow tires, and approaching the tractor at a speed of 45 or 50 miles an hour; that the road had a .57 per cent grade and was an oil base black top wet from mist; that at 450 feet to the rear, the driver of the automobile saw the plow. Upon this assumption it was his opinion that the automobile could be stopped so as not to collide with the tractor within the 450 feet. Upon further questioning he gave as his opinion that the defendant could stop within 184 feet at 45 miles per hour, which distance included 49 feet he would travel during three quarters of a second reaction time; that at 50 miles per hour the total stopping distance would be 222 feet; that at 65 miles per hour the total stopping distance would be 353 feet. He was also asked to compute stopping distance at 70 miles per hour but defendant’s objection to such question was sustained. He stated that if the pavement was dry the stop at 45 miles per hour could be made in 153 feet, and at 50 miles per hour in 183 feet. The witness also stated that all the above stops could be made with safety to the operator and to others and the vehicles. On cross-examination the witness stated that he considered the road as being very slick, “slicker than if it had been raining hard.”

Mr. and Mrs. Orville Trego were the first persons to arrive at the accident scene. They stated that it was dark and rainy. Mrs. Trego saw the taillights of defendant’s vehicle as they came down the hill to the accident; Mr. Trego said he could see the distance between two light poles, approximately 200 yards.

Defendant testified that he was going between 45 and 50 miles per hour and that he saw the plow when he was “somewhere between a hundred and a hundred and twenty feet away”; that he “automatically grabbed the steering wheel and stomped the brakes.” On cross-examination he admitted making previous statements that he was 450 feet back when he first saw the tractor; that such deposition statement was his best judgment at the time after having paced off 500 feet preparatory to submitting to the deposition.

Other witnesses gave testimony on weather conditions and time which has been included in the above recital.

Plaintiff’s pleadings contained allegations of primary and humanitarian negligence; however, all allegations of primary negligence were dismissed at the beginning of the trial, and the case was submitted on humanitarian negligence in failing to stop or slacken speed and thus avoid the collision.

Defendant insists that plaintiff failed to make a submissible case for failure to establish (1) the distance separating the vehicles and defendant’s speed at the time plaintiff came into imminent peril and (2) defendant’s ability thereafter to avoid, and that the errors charged by plaintiff are therefore immaterial. In this situation, we resolve this issue first, and, in making such determination, we review the evidence in the light most favorable to plaintiff. Stradford v. Bluefeather, Mo., 384 S.W.2d 541, 542 [1].

Under the humanitarian doctrine no duty to act was imposed upon defendant until a situation of peril arose. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788 [4]; Farmer v. Taylor, Mo.App., 301 S.W.2d 429, 433 [6]. When plaintiff first became aware of defendant’s overtaking vehicle, plaintiff was on the narrowed part of the roadway some 40 or 50 feet south of the bridge and traveling 3 to 4 miles per hour. There were deep ditches on either side of the road and plaintiff could only continue ahead. Defendant first saw the plow attached to the rear of plaintiff’s tractor when, by his admission, the tractor was starting onto the bridge. Plaintiff could reasonably be found in imminent peril at any time after he entered the narrowed portion of the roadway in which he could but continue forward, and the point or position of imminent peril was properly for the jury to determine here. Perkins v. Terminal R. Ass’n of St. Louis, 340 Mo. 868, 102 S.W.2d 915, 923 [13].

Part of plaintiff’s case was taken from defendant’s deposition where he stated that he first saw the plow when he was 450 feet south of it; that the tractor was then starting onto the bridge; that he saw the plow with his headlights 450 feet away, and that he could see around 500 feet with his lights. Defendant, therefore, had notice of plaintiff’s peril.

Defendant stated his speed to have been between 45 and 50 miles per hour when he first saw the plow. Plaintiff judged that defendant’s speed was 65 miles per hour. Witness Wessling testified that under the conditions present at time of collision and at 45 miles per hour, defendant could have stopped in 184 feet; that at 50- miles per hour he could have stopped in 222 feet, and at 65 miles per hour in 353 feet. These distances are all well within the 450-feet distance at which defendant saw the plow at the rear of plaintiff’s tractor. The witness also stated that the stops could be made with safety to the driver and to others, and to vehicles. We conclude that there was evidence on the distance separating the vehicles and defendant’s speed and from which a jury reasonably could have found that defendant in the exercise of the highest degree of care could stop and thereby avert the impending injury without injury to himself or others.

The evidence shows also that plaintiff’s tractor was traveling at a speed of at least 3 or 4 miles per hour in the same direction that defendant’s automobile was traveling. Since the jury might reasonably have found under the circumstances that defendant in the exercise of the highest degree of care could have stopped before colliding with plaintiff’s tractor, it logically follows that the jury might have found that defendant could have slackened his speed sufficiently to have allowed plaintiff to continue moving forward across the bridge to a place of safety and thus have avoided the collision. Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 605 [3]; Fultz v. Southwestern Bell Telephone Co., Mo.App., 382 S.W.2d 24, 28 [3].

Defendant argues that plaintiff cannot disregard his own estimates of speeds in excess of 65 miles per hour and take advantage of defendant’s estimate that is contradictory to his own. Fenneren v. Smith, Mo., 316 S.W.2d 602, 605; Meese v. Thompson, 344 Mo. 777, 129 S.W.2d 847; Fisher v. Gunn, Mo., 270 S.W.2d 869. These cases apply where plaintiff relies on a theory which is in fact “at war” with favorable evidence available from defendant which plaintiff seeks to use in his case. They are not in point here because plaintiff’s theory is limited to recovery on humanitarian negligence based on defendant’s ability to stop or slacken within the distance available. Nor is the lack of proof of defendant’s ability to stop in the distance available at speeds of 70, 75, and 80 miles per hour (the speeds indicated in the deposition of plaintiff) fatal as in Elkin v. St. Louis Public Service Co., Mo., 335 Mo. 951, 74 S.W.2d 600, 604. Here, we have evidence from Sergeant Wessling on defendant’s ability to stop at plaintiff’s estimate of defendant’s speed, 65 miles per hour, and at defendant’s estimates of 45 to 50 miles per hour. This is the theory of plaintiff’s case on trial and he is not bound by his deposition estimates. Plaintiff, however, asked for the opinion of Sergeant Wessling on defendant’s ability to stop at 70 miles per hour but the witness was foreclosed from further testimony by defendant’s objection and defendant should not now be heard to complain of any failure of evidence which he caused.

Defendant contends also that the distances obtained from defendant’s deposition and relied upon by plaintiff are but mere guesses and are not of sufficient probative value to justify submission. Prince v. Bennett, Mo., 322 S.W.2d 886, 891 [2]. In that case the court held that a witness could not observe a truck moving only 6 inches in a given direction and formulate a credible opinion that the truck was moving in that direction at 10 miles per hour without resorting to guesswork. Such is not the case here where defendant made his deposition statements of distances of 450 and 500 feet after stepping off 500 feet preparatory to giving his deposition. Nor are defendant’s statements mere impressions, as in Masonic Home of Missouri v. Windsor, 338 Mo. 877, 92 S.W.2d 713, 716 [3-5]. Under the circumstances here, we cannot say that the statements used in plaintiff’s case lacked probative force.

Having seen that a jury reasonably could find that defendant could avert the collision by stopping or slackening speed within the 450 feet of defendant’s actual notice, a jury could find also that a failure to stop or slacken under those conditions was negligence and that such negligence caused the casualty. There is no contention here that plaintiff did not receive injuries in the casualty.

We conclude that there was probative evidence here of all the elements of a humanitarian case. Banks v. Morris & Co., Mo., 302 Mo. 254, 257 S.W. 482, 484 [2].

Among other things plaintiff complains of errors in the giving of Instruction No. 8. He charges that it is erroneous because it fails to converse both theories of humanitarian negligence submitted and is therefore in conflict with Instruction No. 1, which included: “ * * * in time thereafter by exercising the highest degree of care and with the means at hand, and with safety to Defendant, his automobile and other persons in the vicinity, to have stopped or slackened the speed of defendant’s automobile, * * * and by so doing, could have prevented and avoided such collision described in evidence, * * * and was thereby negligent, * * (Italics added.) Defendant conversed this theory by Instruction No. 8 which included: “ * * * in time for the defendant thereafter, by the exercise of the highest degree of care, to have stopped the same, so as to have prevented the injury to plaintiff, then plaintiff is not entitled to recover and you will find your verdict in favor of the defendant.” (Italics added.)

Plaintiff’s petition alleged disjunctive theories of liability for failure to stop, slow, or swerve; Instruction No. 1 submitted two of such disjunctive theories, i. e., failure to stop or slacken speed, and it has been demonstrated that there was evidence in support of both theories. In this posture of the case we cannot say, as defendant contends, that plaintiff’s theory of recovery was limited to failure to- stop. On the contrary, as above indicated, it was twofold. In this situation, the submission of the converse of stopping without also submitting the converse of slackening was misleading and constituted a misdirection. Carlson v. St. Louis Public Service Co., Mo., 358 S.W.2d 795, is directly in point. There, plaintiff was making a left-hand turn and her automobile was struck in the right rear by defendant’s bus. Plaintiff submitted her case on primary negligence in failing to keep a lookout, and on humanitarian negligence in failing to stop or slacken speed and thus avoid the collision. The defense was submitted in an instruction which relieved defendant of liability if the bus operator was unable to avoid collision by stopping. No mention was made of the submitted duty of slackening speed. In holding the giving of the instruction prejudicial error, the court said, 358 S.W.2d 1. c. 801 [10]: “ * * * It makes little difference what we call it; it did attempt to hypothesize defendant’s theory and directed a verdict. It must have been complete, both in the essentials of its hypothesization and in a recognition of defendant’s duties. * * * In addition, and of much importance, it relieves defendant of all liability if the operator was unable to avoid the collision by stopping, completely ignoring the submitted duty of slackening sufficiently to avoid the collision; in this later respect if defendant intends to say, as apparently it does, that slackening was included in the cover-all phrase ‘and was not negligent under any of the other instructions,’ most certainly the submission of stopping and not of slackening was misleading, and the general reference to other instructions and to the exercise, generally, of the highest degree of care was not sufficient either to correct that false impression * * * or the failure to hypothesize facts to sustain a finding of no humanitarian negligence.” See also Willard v. Bethurem, Mo.App., 234 S.W.2d 18, 21 [1]; Scott v. Nash, Mo.App., 355 S.W.2d 626, 632 [6-8].

Instruction No. 8 is erroneous in this same respect because it omits and ignores plaintiff’s theory of recovery based on failure to slacken speed and is thus m conflict with Instruction No. 1. For this reason, plaintiff is entitled to a new trial.

Defendant argues that plaintiff was not entitled to a submission on failure to slacken speed because the theory is not available where plaintiff is stopped or following a fixed course and only the defendant has control of the situation, citing Moss v. Nehman, Mo., 247 S.W.2d 305; Harrow v. Kansas City Public Service Co., Mo., 233 S.W.2d 644; State ex rel. Baldwin v. Shain, Mo., 125 S.W.2d 41; Steuernagel v. St. Louis Public Service Co., 357 Mo. 904, 211 S.W.2d 696; and Cosentino v. Heffelfinger, 360 Mo. 535, 229 S.W.2d 546. This argument is untenable here because plaintiff was not stopped. Plaintiff testified that when he became aware of defendant’s oncoming car he was going 3 to 4 miles per hour and then “accelerated” to get away; he did not change gears because that would have required him to stop and lose time. Thus, he was not oblivious as was the plaintiff in Harrow v. Kansas City Public Service Co., supra, and State v. Shain, supra, nor was he stopped with a fixed intent to remain stopped as in Moss v. Nehman, supra. Steuernagel v. St. Louis Public Service Company, supra, and Cosentino v. Heffelfinger, supra, are distinguished in that they are cases in which a point of imminent peril could not be fixed without resorting to speculation.

Defendant also criticizes Instruction No. 1 but its accuracy is not an issue on this appeal, and it is unnecessary to- comment further on any of the instructions because retrial will be under Missouri Approved Jury Instructions. Likewise, we find it unnecessary to review other points on this appeal which are not likely to arise on retrial.

The judgment is reversed and the cause remanded for a new trial.

Houser and Welborn, CC., concur.

PER CURIAM.

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

All concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Gertrude Blacketer KECK, Appellant.
    No. 50784.
    Supreme Court of Missouri. Division No. 2.
    May 10, 1965.
    Norman H. Anderson, Atty. Gen., Jefferson City, Henry S. Stolar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Emmett L. Bartram, Maryville, for appellant.
   PRITCHARD, Commissioner.

Defendant was found guilty by a jury of the crime of stealing hogs. Her punishment was assessed at one year in the county jail “subject to parole or probation at six months for good behavior.” We have appellate jurisdiction because the crime charged of stealing hogs, regardless of their value, is a felony under § 560.161 subd. 2 (3), RSMo 1959, V.A.M.S.Const.Mo.1945, Art V, § 3, V.A.M.S.

Defendant questions the submis-sibility of the state’s case. No motion for judgment of acquittal was made by defendant at the close of all of the evidence. Even so, we look to the record to ascertain if there was any substantial evidence to support the verdict. State v. Burnett, 365 Mo. 1060, 293 S.W.2d 335, 339 [3]. In so doing, we consider the evidence and favorable inferences reasonably drawn therefrom in the light most favorable to the state, and disregard all evidence and inferences to the contrary. State v. Watson, Mo., 350 S.W.2d 763, 766 [1].

The facts are these: On July 6, 1962, Bill Coston owned some hogs located two miles east and two miles north of Skidmore, in Nodaway County, Missouri. On that day he learned that two hogs were missing— “Hamp” gilts, with V-notches in the top of their left ears, with bobbed tails, and weighing 185 to 200 pounds. A hole was cut out in the fence of the lot where the hogs were kept. Bill later saw one of the hogs at “Skeeter” Brown’s sale barn in Bedford, Iowa, and positively identified it. He gave no one permission to take the hogs.

The hogs on Bill’s farm were fed and cared for by his father, Frank Coston. Frank counted them every time that he fed them, and discovered the missing hogs about five o’clock on the morning of July 6 or 7. He later saw one of the missing hogs at “Skeeter” Brown’s sale barn, and found another three or four miles east of Bedford, Iowa. Frank identified the hogs as the property of his son, Bill.

Rex Freeze was with defendant, her husband, Sterling, and with two of her children on July 5, 1962, in College Springs, Iowa. The group went on that day to defendant’s home at Ellwood, Kansas. Defendant and her husband told Freeze that they were a little hard up and they discussed going after some hogs. Defendant stated that she knew that some hogs could be gotten at the Coston farm. That night they went to the Coston farm but did not take any hogs. The following night, they returned to the farm in Freeze’s car, the back seat of which had been removed. Upon arrival, feed was scattered in the lot and the hogs were caught with a rope. Defendant and Freeze cut a hole in the lot fence with wire cutters which had been purchased by defendant’s husband, and the hogs were removed through the hole, driven to a ditch beside the car and loaded therein. They then drove to New Market where they were unable to sell the hogs, so they were placed in a pen. At that time defendant was sitting in the car. A pickup truck was then hired from Tony Pace, and the hogs were hauled to “Skeeter” Brown’s sale barn at Bedford, Iowa, where they were sold for $59.90, Freeze doing the negotiating with Brown. Defendant, her husband and Freeze left Bedford and came to Maryville, Missouri, where Freeze cashed the check and gave defendant and her husband half of it.

Deputy Sheriff Carl O. Mackey of Holt County was permitted to testify, over objection, that defendant made an oral statement to him about the crime. The ground of the objection was that defendant was not advised by Mackey that any remarks she made could be used against her. The statement was made on April 13, 1963, in the Sheriff’s office in Holt County where defendant was on another charge of petty stealing, about which Mackey was going to question defendant. He suggested to her that she tell him if she stole anything else, but he did not know anything about the Coston theft at that time. He did not advise her that what she said could be used against her. Thereupon, defendant related to Mackey, spontaneously, unsolicited and voluntarily, that on July 6, 1962, her husband and Freeze told her they were going to steal some hogs and that she was to do the driving. Her clothesline was taken to tie the hogs, and she drove the car to Nodaway County, parked at the foot of a hill and kept the motor running. Her husband and Freeze got out, told her to keep the door open and motor running, and returned 10 or 15 minutes later each carrying a hog, which hogs were put in the back seat. They drove to a stockyards where they were unable to sell the hogs, so they hired an old gentleman and his grandson to take the hogs to Bedford, Iowa. Freeze sold the hogs there for $67.00, after which they went to Maryville and cashed the check.

Under the above evidence, the state made a submissible case upon defendant’s participation in the hog theft. This point (No. 7) is ruled against defendant.

With respect to the admissibility of defendant’s statement to Deputy Sheriff Mackey, the evidence is further that defendant told him in the Magistrate Court of Holt County that she wanted to clear up everything. “She wanted to get right.” “She wanted to take care of her family.” Mackey then told her, “Let’s go up to the office and you can tell me about it.” Upon arrival at the office, defendant started to tell him about the hog stealing. He put no questions to her. Under these circumstances the statement was not inadmissible. Defendant was not coerced; she was not promised anything; there was no physical abuse, or a long interrogation or a holding of her incommunicado by the Sheriff. The mere fact that defendant was not advised that her statement could be used against her does not render the same inadmissible. State v. Laspy, Mo., 323 S.W.2d 713, 716 [3, 4]; State v. McCulley, Mo., 327 S.W.2d 127, 130 [1]; State v. Thost, Mo., 328 S.W.2d 36, 39 [6, 7]; and State v. Martin, Mo., 347 S.W.2d 680, 682 [4], where it was held that the mere fact of being in custody and not being advised that any admission made could be used against the defendant did not establish that his admission or confession was involuntary as a matter of law. For all that appears here, defendant’s statement to Mackey was freely and voluntarily given, of a spontaneous nature, and defendant’s point raising the issue of its admissibility is overruled.

Point 1(b), “Self-serving statements, accusations against accused husband were properly (sic) excluded as hearsay and immaterial,” and Point 2, “Supreme Court must search record proper for error, regardless of whether such questions are raised on appeal or were raised on motion for new trial,” present nothing for review. Civil Rule 83.05, V.A.M.R. So also with Point 4, “Extra judicial admissions are not admissible,” and Point 5, “Admission or confession induced by some influence like a hope of clemency, is inadvisable.” Under said rule, applicable in criminal cases under Rules of Criminal Procedure, § 28.18, points relied upon “shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed. Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule." (Emphasis added.)

By Point 3, defendant claims she “should have been permitted to show, and tell, how her husband told the jury, in his case, that he told them, her sister, Mrs. Freeze, was the woman who went with the men and got the hogs, and she also testified in the husband’s case.” We have searched the transcript on appeal, and we find no testimony relating to this point, so obviously it must be overruled.

Other points erroneously numbered 4, 5 and 6, relate to credibility of witnesses t That there was no evidence to sustain the state’s charge except that of two ex-convicts; that practically all of the state’s witnesses were proven false; and that the creditable evidence by a little 12-year old girl (defendant’s daughter) and a woman (in defendant’s home) was all adverse to the testimony of the state’s convict witnesses. The credibility of the testimony of state’s witnesses Freeze and Mackey was for the jury, and we may not interfere with the jury’s determination of the facts based upon such testimony. State v. Jones, Mo., 358 S.W.2d 782, 784 [4]; State v. Tompkins, Mo., 277 S.W.2d 587, 590 [1]. Said points are overruled.

We have ruled the submissibility of the state’s case, raised under what has been denominated defendant’s Point 7. Under this point, defendant says also that she proved her alibi that she was at home that night and was not with the ones who committed the crime, but no instruction was given the jury on “alibi.” The evidence of defendant does tend to prove an alibi, and the court did not instruct thereon. The defendant, however, neither requested nor offered an instruction upon the defense of alibi, and in the absence of such a request or offer, we will not convict the trial court of error. State v. Westfall, Mo., 367 S.W.2d 593, 595 [5-7]; State v. Harris, Mo., 356 S.W.2d 889, 891 [3-5].

We have examined the matters set forth in Rules of Criminal Procedure, §§ 28.02 and 28.08, V.A.M.R., required to be reviewed, and we find no error. The information is sufficient; the verdict is in proper form (the phrase, “subject to parole or probation at six months for good behavior,” is to be treated as a recommendation for clemency or leniency and is to be otherwise disregarded, State v. Churchill, Mo., 299 S.W.2d 475, 479 [14, 15]); judgment was entered after allocution was granted, and the sentence was within the permissible limits. Defendant was present in person and by counsel from arraignment to judgment and sentencing.

The judgment is affirmed.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Judge.

text:
    Vernon PFARR and Cora A. Pfarr, Appellants, v. UNION ELECTRIC COMPANY, Respondent.
    No. 50871.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 10, 1965.

      N. Murry Edwards, St. Louis, Ninian M. Edwards, Clayton, B. Richards Creech, St. Charles, for appellants.
    Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondent.-
   EAGER, Judge.

In this declaratory judgment suit plaintiffs sought an adjudication that all of defendant’s right, title and interest in certain real estate had been forfeited, and that all such interest had reverted to plaintiffs as fee simple owners. After arguments and briefs, defendant’s motion to dismiss the petition was sustained and the petition was dismissed for failure to state facts which would entitle plaintiffs to relief. In connection with that motion, the parties filed a stipulation of facts. This was and is a somewhat unusual procedure, -but no one objects to it here, and indeed all of the facts so stipulated are matters- of record in the trial court in prior litigation between the same parties. Also, the same facts are before us in our prior transcript.

On January 10, 1961, Union Electric filed its petition in condemnation pursuant to § 523.010 against these plaintiffs, seeking to condemn the real estate in question for the erection and maintenance of an electric power plant, substations, transmission and distribution facilities, etc. This petition sought specifically “to acquire, take and appropriate the above described real estate * * * for the purpose of erecting, constructing, keeping and maintaining power plant, substations and distribution facilities in order to manufacture and distribute electric power.” A part of the condemnor’s prayer was that defendants’ damages be ascertained and that the Court enter a decree “ * * * vesting in Plaintiff, its successors and assigns, the fee simple title * * * Motions to dismiss and to make more definite and certain were filed and overruled. In their answer defendants denied the allegation of public necessity and the sufficiency of the petition to comply with § 523.010, along with other denials and allegations. Sundry interrogatories asking for many details of the condemnor’s plan were filed by defendants and thereafter quashed. A hearing on the petition was had on March 13 and 16, 1961, and evidence was heard; on April 1, 1961, the Court found the issues in favor of plaintiff on its petition and entered its order and judgment finding that plaintiff was entitled “to take, acquire and appropriate said real estate for the purposes set forth * * * ”; it was further ordered that the lands “are and stand condemned” and that plaintiff should have the right of possession upon the payment of the damages awarded by the commissioners (who were appointed on the same day). The commissioners awarded defendants the sum of $85,000; both parties filed exceptions. At the trial before a jury the verdict was for $66,000. In their motion for a new trial the defendants specifically asserted that Union Electric had not obtained title and they had not been divested of title, because the condemnor had not deposited or paid interest on the award of the -commissioners. The defendants in that cause (present plaintiffs) appealed from the judgment and our opinion appears at 375 S.W.2d 1. The issues decided on that appeal concerned the instructions, the exclusion of evidence and certain questions regarding the payment of interest. It will be noted from that opinion that the case was tried and the jury instructed upon the theory that the defendants were entitled to the fair market value of their land, i. e., the value which a willing buyer would pay and a willing seller would take, and “on the usual and ordinary terms of private sale.” The defendants offered and the Court gave an instruction on that theory, in addition to those offered by the condemnor. We have found nothing, either in the preliminary proceedings, the trial, or on the appeal to indicate that any suggestion was ever made contrary to the theory that a full transfer of title in the land was contemplated and was to be effected. These (present) plaintiffs withdrew the amount allowed them in the condemnation proceeding and have ever since retained it, with no offer of a tender back, in whole or in part. Union Electric took possession of the land upon its payment into the registry of the Court of the sum of $85,000, as allowed by the commissioners. This was on or about April 7, 1961.

The present petition alleges the substantive facts of the condemnation proceeding, that the (present) defendant “did obtain a judgment and decree of condemnation of plaintiffs’ lands * * but that defendant illegally holds possession of the lands, that it has graded and “mutilated” them and is using them for farming and agriculture; that the property has never been rezoned for industrial purposes and that defendant has failed and refused to have it rezoned; that defendant’s such acts, and its failure to use the lands for an electric power plant, are illegal and that defendant has “forfeited the right to use said land * * * ” for the purposes for which they were so condemned. Plaintiffs pray an adjudication that all of defendant’s rights in the land have been forfeited and that its interest has reverted to plaintiffs as fee simple owners.

Plaintiffs’ sole point in their brief is that the Court erred in dismissing their petition because it alleged: (1) plaintiffs’ illegal use of the land for agricultural purposes after it was condemned for an alleged public use; (2) that defendant had failed to have the land rezoned; and (3) that defendant had failed to use the property for an electric power plant, for which purpose it had been condemned. While insisting that the case should be considered on the merits and upon the hearing of evidence, counsel for plaintiffs frankly admitted in the argument that if Union Electric acquired a fee simple title in the condemnation, plaintiffs had no case.

We start with the established fact, taken from the allegations of the petition, the stipulation and our records, that these lands were condemned for a purpose judicially found to be a public purpose, in a proceeding which was and is entirely regular on its face. This suit was filed a little more than two years after the finding and judgment of condemnation, and six months before our opinion affirming the award in condemnation. In other words, it was filed while the amount of the award was still in litigation. It seems obvious that much of the land acquired for an extensive power plant would ultimately be used for auxiliary purposes such as storage, transmission lines, substations and like facilities.

Union Electric’s position is, basically: that it is not necessary for a public utility to have property rezoned in order to use it for its public purposes; that only the State can challenge the use being made of condemned property; that it acquired a fee simple title and that there could be no forfeiture or reverter; and that plaintiffs have waived all further claims to the land by receiving the full condemnation award and failing to tender it (or any part of it) back. We shall not need to decide all those questions here.

We conclude that under these circumstances plaintiffs are estopped to deny that the defendant, Union Electric, acquired a fee simple title. It specifically prayed for such a title, the order of condemnation was made without qualification, the nature of the user sought was a permanent one, and the ju-y was very specifically instructed to return a verdict for the full, fair market value of the land. The appeal here was decided upon the theory of a passage of title and compensation for the full, fair value of the land. The plaintiffs accepted and retained the amount finally awarded as such value, and they have never offered (and do not now offer) to tender it hack, or any part of it.

In O’Hara v. District of Columbia, 79 U.S.App.D.C. 302, 147 F.2d 146 (a school condemnation) the Court said, in part, loc. cit. 147-148: “Furthermore, in the condemnation proceedings involved here the jury were instructed to appraise the property at its full market value. Such instructions would not have been appropriate had anything less than a fee been condemned by the District.” In Greenwood County v. Watkins, 196 S.C. 51, 12 S.E.2d 545, the Court had held that under South Carolina law the county had acquired a fee simple title in condemnation proceedings for a hydroelectric project, but as an additional reason for its decision, the Court said, at 12 S.E.2d, loc. cit. 551: “The plaintiff further contends that the defendant is now estopped to question the fact that the plaintiff acquired a fee-simple title to her land. The record in the condemnation proceeding, as heretofore pointed out, shows that the trial of the condemnation proceeded upon the theory that the plaintiff was acquiring the fee-simple title to the lands from the commencement of the proceeding on December 14, 1934, to the order overruling the motion for a new trial on October 10, 1938. During all of tills time, she made no effort to enjoin the proceedings, or to raise the question, and she heard the judge charge the jury that the plaintiff was acquiring the fee-simple title, and she accepted the verdict of the jury, based upon that ruling. I am of the opinion that the rule applied in the case of Board of Commissioners for Clarendon County v. Holliday, 182 S.C. 510, 189 S.E. 885, 109 A,L.R. 1496, should be applied here. That case was an appeal from final judgment in a condemnation proceeding. There, the trial below had proceeded upon the theory that in that condemnation proceeding the question of the power to condemn could be adjudicated. In the Supreme Court, for the first time, the question was raised that in a condemnation proceeding, the only question involved is the amount of compensation, and the right to condemn is not involved. The court held that was true, but that the parties having participated in the trial on a different theory, even though it was erroneous, were estopped to raise the question.”

Since the condemnation case was fully tried and adjudicated upon the theory that a fee simple title was being acquired, these parties are not permitted, upon appeal (or in a collateral attack), to adopt a different and inconsistent theory. Cleary v. Cleary, Mo., 273 S.W.2d 340, 348. The case of Luttrell v. State Highway Commission, Mo.App., 379 S.W.2d 137, bears some analogy here. There the Highway Department had built a road across certain land under authority of a deed which was wholly ineffective, it not being made by the owner. The actual owner knew of the construction but did nothing until after the road was completed. It was held that she could not maintain ejectment. In so far as that opinion may have referred to the remedy of damages in an “inverse condemnation” suit, we note here that the present plaintiffs have already received their damages.

The situation here is also somewhat analogous to those existing where the rescission of a contract or of a sale of land is sought. It is very generally held that a party seeking such relief must place or offer to place the other party in status quo, in so far as possible (55 Am.Jur., Vendor and Purchaser, § 636, p. 1029); and this doctrine, as applied to a vendor of land and in the absence of express agreement to the contrary, includes a return (or tender) of the purchase money received. Id. See also, McFarland v. Cobb, Mo., 64 S.W.2d 931; Gash v. Mansfield, Mo.App., 28 S.W.2d 127, 132. In White Oak Grove Benevolent Society v. Murray, 145 Mo. 622, 47 S.W. 501, the Court said at 47 S.W., loc. cit. 503: “The circuit court correctly ruled that, in equity and good conscience, defendants could not -repudiate their deed while enjoying the purchase money; that, having recognized plaintiff as a corporation for the purpose of obtaining the money of its members, they were estopped, after its receipt and retention, to question its corporate character, and properly issued a perpetual injunction against all interference and in-termeddling with plaintiff’s rights to the land.”

The elements of an equitable estoppel are present here. Emery v. Brown Shoe Co., Mo., 287 S.W.2d 761, 766-767; State ex inf. Shartel ex rel. City of Sikeston v. Missouri Utilities Co., Banc, 331 Mo. 337, 53 S.W.2d 394, 89 A.L.R. 607. In the latter case the Court said at loc. cit. 399 of 53 S.W.2d with reference to the doctrine of es-toppel: “It ‘stands simply on a rule of law which forecloses one from denying his own expressed or implied admission which has in good faith and in pursuance of its purpose been accepted and acted upon by another.’ McFarland v. McFarland, 278 Mo. 1, 16, 211 S.W. 23, 27.” Here all parties in the prior litigation, and the Court as well, acted upon the assumption that a fee simple title was being condemned and paid for; upon that assumption Union Electric paid the compensation awarded and these plaintiffs accepted it. It is too late for them to retract now. It is possible that this might also be classified as an “estoppel by record,” but we do not need to go into that subject.

In opposing the contention of waiver and estoppel these plaintiffs say that they had a perfect right to take the money because the condemnation was allegedly for a public purpose; that, however, the refusal to use the land for that purpose has worked a “forfeiture” of the land to them, and that no tender was or is required. We are unable to follow the logic of that argument. They cannot recover the land and keep the money. And, as we have already held, they are now estopped to deny that the present defendant acquired a fee simple title.

Since the facts alleged in the present petition and the judicial records of the condemnation case made the conclusory allegations of illegality completely immaterial, the Court was justified in dismissing the petition of plaintiffs.

The judgment is affirmed.

All of the Judges concur.

      . All statutory citations are to RSMo 1959, V.A.M.S., unless otherwise stated.


author: HOUSER, Commissioner.

text:
    508 CHESTNUT, INC., a Corporation, Respondent, v. The CITY OF ST. LOUIS et al., Appellants.
    No. 50920.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 10, 1965.

      Morris A. Shenker, Emanuel Shapiro, St. Louis, for plaintiff-respondent.
    Thos. J. Neenan, City Counselor, Thomas F. McGuire, Daniel T. Tillman, Assoc. City Counselors, St. Louis, for appellants.
   HOUSER, Commissioner.

508 Chestnut, Inc., a corporation engaged in the operation of a hotel business, brought suit against City of St. Louis and its license collector and comptroller, praying for a judgment declaring Ordinance No. 52030 void, and to enjoin defendants from enforcing same and collecting license taxes thereunder. City of St. Louis filed its answer and a cross-claim praying judgment for the amount of money due under the ordinance. Certain admissions of fact were demanded and made under Civil Rule 59. Plaintiff filed a motion for summary judgment on petition and cross-claim on the ground that the pleadings and admissions showed that there was no genuine issue as to any material fact and that plaintiff as a matter of law was entitled to judgment for the relief prayed for in its petition. The motion for summary judgment was tried before a judge of the circuit court upon the pleadings, agreed statement of facts and certain documentary evidence introduced at the hearing.

On April 24, 1964 the court made and entered its findings of fact and conclusions of law; determined that the ordinance was void, that defendants were not entitled to enforce collection of taxes thereunder, and entered judgment for plaintiff and against defendants on both petition and cross-claim.

On May 6, 1964 defendants filed a motion for a new trial, which was argued, submitted to the court, and denied on June 12, 1964. On June 15, 1964 defendants filed a notice of appeal from the judgment entered on April 24, 1964.

In their jurisdictional statement defendants raise the question whether the appeal is timely. Plaintiff urges that this is a case tried to the court without a jury; that under the provisions of Civil Rule 73.01(c) as written on May 6, 1-964 a motion for a new trial in that kind of case had to be made within 10 days after the entry of judgment; that defendants’ motion for a new trial was made 12 days thereafter — too late to extend the time for the filing of the notice of appeal — and therefore the notice of appeal, filed 52 days after entry of judgment, was filed too late to vest jurisdiction in this Court. Plaintiff points out that the Court recently (on November 16, 1964) promulgated an amendment to Civil Rule 73.01(c) to increase the time limit from 10 to 15 days, and recalls the notation made by the Court on that occasion: “The change in Rule 73.01 is made so that the time for after-trial motions in nonjury cases will conform to the time now permitted for motions for new trial in jury cases.”

In Crooms v. Ketchum, Mo.Sup., 379 S.W.2d 580, 585 [3] we held in a court-tried, ease that the filing of a motion for new trial 12 days after the entry of judgment was timely; that such a case is governed by Civil Rule 78.02, which provides, among other things, that a motion for new trial shall be filed not later than 15 days after the entry of the judgment. Under the ruling in that case the finality of the judgment in this case was suspended until the motion was overruled within 90 days. Civil Rules 78.02 and 78.04. Notice of appeal • was timely filed three days after the motion for a new trial was denied. The amendment of CivH Rule 73.01(c) on November 16, 1964 and the notation on the order of amendment was intended to eliminate the confusion arising out of the difference between the 15 days provided for in Civil Rule 78.02 and the 10 days provided for the filing of motions to amend the judgment and opinion in court-tried cases. The amendment and notation are not to be interpreted as a construction that at that time Civil Rule 73.01(c) provided a 10-day time limit for filing motions for new trial in court-tried cases.

The facts are undisputed. Plaintiff corporation operates the LaSalle Hotel in the City of St. Louis. It is subject to § 402-170, Revised Code, City of St. Louis, which levies on hotels a license fee of 500 annually for each sleeping room to be used for paying guests. Prior to the enactment of the ordinance in question Ordinance No. 48433, levying on each hotel a license tax of 2% of the daily rental of each room occupied by a transient guest in addition to the tax levied on rooming houses in general, was declared void by the Circuit Court of the City of St. Louis. City did not appeal.

Ordinance No. 52030, § 29-108 of which is now under attack, was approved June 1,1963. Its 1400-word title, irrelevant matter omitted, follows; "An Ordinance licensing and regulating the following business avocations, permits, professions, trades, calling[s?] as follows: [here 217 businesses are listed, including “Hotels and Motels”]..

“Establishing a procedure for the issuing of licenses, requiring all delinquent taxes, licenses, permits due or past due to be paid as a condition precedent to the issuance of such licenses; requiring the license collector to administer such ordinance; establishing the Board of Tax Appeals; providing and prescribing the procedure and powers of the Board of Tax Appeals; requiring bonds for certain specified licenses,. and repealing [certain numbered and entitled chapters of the Revised Code] and containing a penalty clause- and- a severability clause.”

Section 29 provides that “Every corporation * * * engaged in any business, * * * or in the keeping or maintaining of any * * * establishment, * * * [referred to?] in this ordinance, shall procure and pay for a license therefor from the city, and such license fees shall be in the respective amounts set out in this ordinance. (except as otherwise provided in this ordinance).”

Each separate business, avocation, calling, etc., is dealt with m a separately numbered subsection. Some license fees are imposed in fixed amounts. For instance, express companies are required to pay a flat annual' license fee of $100. Others are based on annual gross receipts, with a minimum annual fee. Provision is made for a rate of $1.75 per $1,000 where the fee is based upon annual gross receipts or other gross annual fees, charges or compensation, “except as otherwise specifically provided in this ordinance.”

Subsection 29-108, “Hotels and Motels,” provides as follows:

“There is hereby levied a tax of two (2) per cent of the gross daily rental receipts due from or paid by transient guests, in addition to the tax levied on hotels and motels by Section 402.170 Revised Code of the City of St. Louis [500 per room per annum, see supra.]
“Definitions for purposes of this section as follows:
“Transient guest shall be a person who occupies a room in a hotel or motel for 31 days or less.
“Hotel or Motel shall mean any structure or building which contains rooms furnished for the accommodations or lodging of guests, with or without meals being so provided, and kept, used, maintained, advertised, or held out to the public as a place where sleeping accommodations are furnished for pay or compensation to transient guests or permanent guests.
“It is hereby made the duty of every person, firm or corporation engaged in the business of operating a hotel or motel to file with the Comptroller of the City of St. Louis, on or before the fifteenth day of October, 1963, a sworn statement of the gross daily receipts received from or due from transient guests from the operation of such hotel or motel from the effective date of this ordinance to September 30, 1963, and to file on or before the fifteenth day of April and the fifteenth day of October of each year a sworn statement of gross daily receipts for such business for the six calendar months preceding the filing of such statement. At the time of filing such statement the Comptroller shall examine the accuracy of such statement and shall certify to the license collector of the City of St. Louis the amount of tax due by such person, firm, or corporation engaged in the business herein described. The license collector shall thereupon notify the person, firm or corporation filing such statement of the certification thereof, and it shall be the duty of such person, firm or corporation within five (5) days to pay the license collector an amount equal to two (2) per cent of the daily gross receipts, as shown by the statement so filed and certified.”

Defendants notified plaintiff of its liability to pay a tax of 2% of the gross daily rental receipts due from or paid by transient guests and that on October IS, 1963 it was required to file the sworn statement referred to in § 29-108, and threatened to bring suit for the sum due unless plaintiff complied. Plaintiffs have “gross daily rental receipts due from or paid by transient guests” as the term is defined in § 29-108.

Plaintiff’s petition alleged, among other things, that § 29-108 violates Art. X, § 1; Art. VI, § 31 and Art. X, § 3, Mo.Const. 1945, V.A.M.S.; the equal protection and due process clauses of Amendment XIV to the federal constitution, and § 13 of the city charter.

In its judgment of April 24, 1964 the court found § 29-108 void “because it is not uniform upon the same class of subjects and because its subject is not clearly expressed in its title.”

We have jurisdiction because this ease involves, the construction of the state and federal constitutions. Art. Ill, § 23,. Const. Mo.1945.

The first issue is whether § 29-108 is void on the ground that the subject is not clearly expressed in the title.

Article IV, § 13, Charter of the City of St. Louis, provides: “Bills to contain single subject * * *. No Bill * * * shall contain more than one subject, which shall be clearly expressed in its title.” This is substantially the same as Art. Ill, § 23, Mo.Const.1945, which applies to bills introduced in the General Assembly. The principles which have been applied in the construction of Art. HI, § 23 are fully applicable. The object of the requirement is that “the title, like a guideboard, indicate the general contents of the bill, and contain but one general subject, which might be expressed in a few or a greater number of words.” State ex rel. Normandy School District of St. Louis County v. Small, Mo.Sup., en banc, 356 S.W.2d 864, 868-869. The evil to be avoided is imposition upon the members of the legislature and interested people. By requiring an “honest” title — one which is not designed as a cover — the legislators will not be misled into overlooking or carelessly or unintentionally voting for vicious and incongruous legislation, and interested people will be notified of the subjects of legislation being considered in order to have an opportunity to be heard thereon. State ex rel. Normandy School District of St. Louis County v. Small, supra, and cases cited 356 S.W.2d 1. c. 869. If the bill contains an exception the exception must be expressed in the title, else the section dealing with the subject matter of the exception is void. State, on Inf. of Taylor v. Currency Services, 358 Mo. 983, 218 S.W.2d 600, 604; Petitt v. Field, Mo.Sup., 341 S.W.2d 106, 110. The title may be expressed in a few words, but where it descends to particulars the particulars stated become the subject of the act, which must conform to the title as expressed by the particulars. “Where the title goes into such detail as would reasonably lead to the belief that nothing was included except that which is specified then any matter not specified is not within the title. Any such matter beyond the title is void * * *." State ex rel. Fire Dist. of Lemay v. Smith, 353 Mo. 807, 184 S.W.2d 593, 596.

The title to Ordinance No. 52030 does not contravene these guiding principles. Neither the members of the board of aldermen nor any person interested in the hotel or motel business would be imposed upon, misled, deceived or surprised by the enactment of § 29-108 under this title. It is an honest title, revealing the one and only general subject of the ordinance — the licensing and regulating of specified businesses and professions, including hotels and motels. The licensing of hotels and motels is germane to the subject. Every provision of § 29-108 is germane, that is, closely allied, fit and appropriate, and of a similar nature to the subject expressed in the title. United Bro. of Carpenters, etc., v. Industrial Com’n, Mo.Sup., 352 S.W.2d 633, 635 [4, 5]. It is simply not true that § 29-108 is “vicious” or “incongruous” legislation, or that the title is a cover for that kind of legislation. In its reference to hotels and motels the title does not descend into particulars, and therefore its failure to include a reference to the sworn statements of receipts to be filed with the comptroller or the variance between the expiration dates of licenses granted to hotels and motels and those granted to other businesses, or other details, is not fatal to the ordinance.

We find no merit in plaintiff's argument that the ordinance is calculated to fall only upon nonresidents of St. Louis and that it exempts or excepts St. Louis residents, without expressing that exception in the title. The tax is not laid upon the guest but on the hotel or motel, and the incidence of the tax does not depend upon the residence or nonresidence of the guest but upon his status as transient or permanent. There is no exemption of “non-transient” hotels and motels, as contended. The ordinance applies to all hotels and motels alike. The definition of hotel or motel plainly indicated that the board of aldermen considered any place where sleeping accommodations are furnished for pay or compensation “to transient or permanent guests” as a hotel or motel. All hotels and motels, as those words are generally used and accepted, accommodate transient guests; the accommodation of transients is their principal preoccupation. Section 29-108 is a legislative recognition of this commonly and judicially recognized fact, namely, that a hotel (and a motel) is a house held out to the public as a place where travelers who come will be received and entertained as guests for compensation, especially for transient persons. We think the board of aldermen, in referring to hotels and motels in the enactment of § 29-108, had in mind that while the principal service offered to the public by hotels and motels is the accommodation of persons who stay 31 days or less, some hotels and motels will or may have some permanent guests who stay for more than 31 days. The object was to tax the gross receipts from transient but not from permanent guests, so that during any computation period hotels and motels would pay the tax on the gross receipts from transient guests but if during the period some revenue was received from permanent guests, that revenue should not be taxed. This is not the same as an exemption of “non-transient hotels,” and there was no necessity of referring -in the title to the distinction between transient and permanent guests.

The second issue is whether § 29-108 is void on the ground that it does not fall uniformly upon the class “Hotels and Motels” and thus violates the uniformity requirement of the state constitution, and whether it is discriminatory in violation of the due process and equal protection clauses of Amendment XIV of the federal constitution.

It is conceded that the ordinance is a revenue measure, an exercise of the taxing power, subject to the uniformity requirement of the constitution, and riot merely a regulatory measure. The ordinance is also subject to the requirement of the City Charter, Art. XX, § 3, that a license tax imposed by any ordinance “shall be uniform for each class.”

The word “uniform” as used in Art. XX, § 3 refers to the measure, gauge or rate of the tax. The words “the same class of subjects” refers to the classification of subjects of taxation for the purposes of the tax. “[W]hen the subjects are once classified the rate must be uniform upon all subjects of the same class.” City of Cape Girardeau v. Fred A. Groves Motor Co., 346 Mo. 762, 142 S.W.2d 1040, 1043 [2].

Plaintiff takes the position that the “class of subjects” under Ordinance No. S2030 is “Hotels and Motels”; that there is no subclassification into hotels doing a transient business and hotels doing a nontran-sient business; that the tax does not apply uniformly upon all subjects of the same class; that “hotels and motels doing transient business, all other things being equal, pay a far greater tax than those doing a non-transient business. Thus, the tax is patently not uniform upon the class ‘Hotels and Motels’ * * *."

We find in § 29-108 no violation of the uniformity requirements of the state constitution and city charter. The same measure, gauge or rate of tax (2% of gross daily receipts due from or paid by transient guests) is uniformly imposed upon all hotels and motels. The tax falls equally and uniformly upon all subjects of the same class and kind, that is, upon all hotels and motels having daily receipts due from or paid by transient guests. If during a reporting period a hotel or motel has no transient guests there is no duty to report or pay a tax under this ordinance. There is no absolute requirement of uniformity in taxation. The only constitutional (and charter) requirement is that “the taxation of subjects which fall in the same class or category be uniform.” State ex rel. Jones v. Nolte, 350 Mo. 271, en banc, 165 S.W.2d 632, 636 [7]. Uniformity of taxation does not require that all subjects of taxation be taxed, and does not mean universality. As far as the uniformity requirement is concerned the legislative body may lawfully tax the gross receipts from one phase of the operation of the hotel or motel business and not tax the gross receipts from another phase of the operation of that business, as long as the tax operates alike on all hotels and motels similarly situated and equally on all similar sources of revenue.

We apprehend that plaintiff’s principal complaint is that § 29-108 is discriminatory. In its brief plaintiff states that “by far, the most glaring defect in the above subsection is its discriminatory application among hotels and motels” and argues that “all other things being equal, the hotel or motel that does transient business will pay a greater tax than the hotel that does not do transitory business, and the hotel with a high percentage of transient business will pay a larger tax than a hotel with a lower percentage of transient business.” While Ordinance No. 52030 makes no formal subclassification of the subjects of taxation into hotels and motels doing a transient business and hotels and motels-not doing a transient business, it does necessarily classify the sources of revenue received by members within the same class; it does make the incidence of the tax depend upon a difference in the method or mode of conducting the same type and kind of business. It is true that under this ordinance the hotel with a higher percentage of transient business will pay more than one with a lower percentage of transient business, and that the hotel doing a transient business will pay a gross receipts tax whereas the hotel that does none will not. Such differentiation, however, is not invidious if the classification is reasonable and not arbitrary; if it is based upon a substantial distinction between hotels that do and hotels that do not. Airway Drive-In Theatre Co. v. City of St. Ann, Mo.Sup., 354 S.W.2d 858, 860 [2]. “A difference in the method of conducting a business is generally a sound basis for classification, particularly if it appears that the tax was fixed in proportion to the amount of business,' which may be determined by different but reasonable methods.” City of San Mateo v. Mullin, 59 Cal.App.2d 652, 655, 139 P.2d 351, 353. The classification of the source of revenue based upon the difference between transient and permanent guests, and the imposition of a tax upon hotels and motels that furnish rooms to paying guests for 31 days or less, is reasonable. Higher per diem prices are charged for transient occupancy; it is a more lucrative field. Stricter daily attention and supervision of the business is required; it is more exacting. It is a different type of business, which caters to a different class of trade. The issue came before the Supreme Court of Florida in Gaulden v. Kirk, Fla.Sup., en banc, 47 So.2d 567, wherein it was resolved as we have resolved it, in this language, 47 So.2d, 1. c. 576, 577: “Certainly it was appropriate for the legislature to place the business of the landlord who rents to transients in a different class from that of the landlord who rents to permanent guests or tenants. These landlords may be in the same general class — assuredly both of them are engaged in renting living accommodations — but the distinction made between their respective businesses for the purpose of taxation under the provision of this Act is permissible classification and is not unreasonable, arbitrary or unjustly discriminatory. The landlord who rents to transients rather than permanent tenants charges higher per diem prices, must (because of the very nature of his trade or enterprise) give strict daily attention and supervision to his business and guests and operates in a special, distinct class — possibly a more lucrative field. It was necessary to establish some period of time which would mark the difference between a transient and a permanent guest. In its wisdom the legislature saw fit to establish six months residence as the criterion. Such period of time constitutes a reasonable basis for the cleavage of the two classes of tenants and this distinction is ample justification for the difference in classification of the businesses engaged in by the landlords. Such division or classification is recognized generally throughout the business world; indeed, in the hotel and apartment trade the difference between the business of furnishing living accommodations to transients and the business of supplying living accommodations to permanent guests or tenants is well known and accepted. Many hotels cater largely, if not exclusively, to so-called commercial or transient guests. * * * The six months basis of differentiation is reasonable and does not amount to unjust or arbitrary discrimination.”

Finally, plaintiff complains that the 2% tax on the gross receipts of hotels and motels is more than 11 times greater than the gross receipts tax levied on other businesses covered by the ordinance, which imposes a tax of only $1.75 per thousand on other businesses. License fees for revenue purposes must be reasonable, but such a fee fixed by ordinance is prima facie reasonable, Ross v. City of Kansas City, Mo.Sup., 328 S.W.2d 610, 615, and “[b]efore the courts will interfere and declare a license tax to be unjust or unreasonable, a flagrant case of excessive and oppressive abuse of power (or improper discrimination) by the municipal authorities in the levying of the license tax must be established.” (Our parentheses.) 38 Am.Jur. Municipal Corporations § 352. “What would be a fair and reasonable exaction for a license or permit as to one kind of business or activity might well be considered unfair and unreasonable as to another kind, * * *." 9 McQuillin, Municipal Corporations, 3rd Rev.Ed., § 26.32c, p. 77. See also idem, § 26.60. Plaintiff produced no extrinsic evidence showing that the fees as applied to different businesses and occupations are unreasonable. We cannot say that unreasonableness appears on the face of the ordinance. It is not clearly apparent that the tax fixed by the board of aldermen is arbitrary, unreasonable, oppressive or prohibitive, virtually confiscatory or prohibitive of the hotel and motel business, under the rules stated in City of Washington v. Reed, 229 Mo.App. 1195, 70 S.W.2d 121, 123, quoted with approval in Holland Furnace Co. v. City of Chaffee, Mo.App., 279 S.W.2d 63, 67.

Finding no constitutional flaw in § 29-108 of Ordinance No. 52030, the judgment of the circuit court is reversed and the cause is remanded for the entry of a declaratory judgment consistent with this opinion.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . All references to rules are to Rules of Civil Procedure, V.A.M.R.

      . “Upon motion of a party made not later than 10 days after entry of judgment the court may amend the judgment and opinion. The motion may be made with a motion for a new trial.”

      . In jury cases applicable Civil Rule 78.02 provides: “A motion for a new trial shall he filed not later than 16 days after the entry of the judgment. The judgment shall be entered as of the day of the verdict. If a timely motion is filed the judgment is not final until disposition of the motion.”

      . Webster’s New International Dictionary, Second Edition.

      . Juengel v. City of Glendale, Mo.App., 164 S.W.2d 610, 613 [2].

      . “Taxes * * * shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Art. X, § 3, Mo.Const.1945.