author: HOLMAN, Judge.

text:
    Niles SIPES, Administrator of Estate of Benjamin Owens, Jr., Deceased, Appellant, v. Manuel VACA et al., Respondents.
    No. 51554.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1965.
    Rehearing Denied Jan. 10, 1966.

      Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellant.
    Henry A. Panethiere, Russell D. Jacobson, Kansas City, for respondents-defendants.
   HOLMAN, Judge.

This action was instituted by Benjamin Owens, Jr., a discharged employee of Swift & Company and a member of the union, as a class action against the membership of the national and local union of the National Brotherhood of Packing House Workers. Certain officers of said unions were individually named as defendants representative of the class. Owens sought to recover actual and punitive damages resulting from his alleged wrongful discharge and the failure of the union to process his protest through all of the administrative appellate procedures provided for in the Master Agreement. The trial resulted in a verdict for plaintiff in the amount of $7,000 actual and $3,300 punitive damages. Upon motion of defendants the trial court set aside the judgment and entered judgment for defendants for the reason that jurisdiction of the subject matter had been preempted by the federal government. Plaintiff appealed to the Kansas City Court of Appeals. He died while the appeal was pending and his administrator was substituted as appellant.

The Kansas City Court of Appeals adopted an opinion affirming the judgment but one of the judges dissented and the court of its own motion transferred the case here. In that situation we will decide the case “the same as on original appeal.” Article V, § 10, Constitution of Missouri 1945, V.A.M.S.

We will continue, for convenience, to hereinafter refer to Benjamin Owens, Jr., as plaintiff. Plaintiff testified that in January 1960, when he was finally discharged by Swift & Company, he was forty-seven years old and had worked sixteen years for Swift; that part of his work was trimming loins, but he also handled heavy halves and quarters of beef; that he had a congenital heart murmur, was troubled with high blood pressure, and had become overweight; that all of his family had had these complaints and had worked hard and lived to a ripe old age; that in May 1959, he had been working long hours, felt bad, and decided to take sick leave for a time and rest up; that at that time he weighed 230 pounds and upon the advice of his physician began to lose weight; that in August his physician, Dr. Alexander, gave him a statement to the effect that he could go back to work and he attempted to do so. However, Dr. Saper, the company’s physician, refused to authorize his return to work because of his blood pressure and cardiac condition. In January 1960, plaintiff was examined by Dr. Steinzeig who gave him a statement that he was able to go back to work. He presented this to the company nurse and she authorized his return to work and he worked three days. On the third day, the superintendent apparently learned that plaintiff was back at work and immediately discharged him on the ground that he was not able to work. Plaintiff testified that at that time he felt fine, had reduced his weight to 180 pounds, and was doing the work assigned to him. Plaintiff further testified that during the period from May 1959 to trial time (June, 1964) he had worked on various temporary jobs but could not get regular employment because he did not dare give Swift, his previous employer, as a reference; that he did hard physical labor for Spencer Chemical Company, Shostak Iron and Metal Company, Guy Campbell, a contractor, Jewish Community Center, and also did such work as cutting grass, trimming trees and things of that nature; that he was able to earn about $1,000 a year at that type of seasonal employment.

After being discharged, plaintiff protested his being denied employment, asserted he was physically able to work, and sought the help of the union in contesting the issue and presenting his grievance. Section XIII of the Master Agreement between Swift & Company and the National Brotherhood of Packing House Workers provided for five administrative appellate steps for handling grievance procedures. The five administrative steps may be briefly described as follows: First step: Aggrieved employee may present his grievance “with or without the union representative” to the foreman of the department. Second step: May present the grievance to the division superintendent. Third step: It may be presented to a grievance committee composed of three union and three company representatives. Fourth step: Reference may be made to the general superintendent of the company with a representative of the national union present. Fifth step: The grievance may be referred by the National Union to one Gabriel N. Alexander, who-was designated arbitrator under the Agreement. It is conceded that the union processed plaintiff’s grievance, without success, throughout the first four steps. Plaintiff cooperated by furnishing the union the statements of a number of physicians indicating that he was able to resume work. Dr. H. H. Hesser, on March 24, 1960, certified that he had taken plaintiff’s blood pressure and that the reading 160 was-. Dr. Bruce P. McDonald on May 18, 93 1960, signed the following certificate: “This is to verify Mr. Owens was examined and treated by me this date and that he is released to resume his regular work as of May 23, 1960.” On July 6, 1960, Dr. John M. Gill signed a statement to the effect that he had taken plaintiff’s blood pressure 160 that day and the reading1 was ■ — . On 100 July 8, I960, Dr. C. W. Alexander signed the following statement: “This is to certify that Benjamin Owens has been examined 160 by me. His blood pressure is ■ — . It is 100 my opinion he is physically able to perform regular work.” The company in denying plaintiff’s reinstatement did not question the qualifications or integrity of any of plaintiff’s physicians but contended that it should have a report indicating a more detailed examination. The company also claimed to have a report from Dr. Saper and Dr. Morris which indicated that plaintiff was not physically able to resume his employment. After the close of the hearing on the fourth step, the union and the company agreed that the grievance be held open at that stage pending further developments and the possible obtention of additional evidence. The union representatives suggested that he have a complete examination by a doctor of his choice and the union would pay for the examination. Plaintiff went to Dr. Hesser who sent him to Dr. H. W. Day and, after examining plaintiff, Dr. Day sent a report to the union indicating that plain- . . . 260 tiffs blood pressure was and that there was some kidney damage and slight heart damage. He expressed the opinion that plaintiff was not able to work.

Plaintiff testified that he asked Manuel Vaca, president of the local, to carry his grievance to the fifth step but that Vaca stated the union did not have the money to use for that purpose and that he would take it to the fifth step if plaintiff would give him $300, which, plaintiff stated, he refused to do. There is evidence that the executive committee of the local union thereafter decided not to take plaintiff’s grievance to the fifth step because there was not sufficient favorable medical evidence. At about that time plaintiff employed an attorney who wrote several letters to Ernest Kobett, vice-president of the National Brotherhood, making inquiry as to what future action was contemplated by the union concerning plaintiff’s grievance and Kobett did not answer those letters. This suit was filed by plaintiff against representatives of the union on February 13, 1962.

Defendants’ evidence consisted of the testimony of four union officers and representatives. They testified as to the handling of plaintiff’s grievance through the first four steps, without success, and as to their reason for refusing to take the fifth step. Manuel Vaca denied that he made any request of plaintiff for $300, or any other amount, and said that it would have been outrageous for an officer of the union to make such a request. Mr. Kobett testified that he attended the fourth step meeting and that, on May 8, 1964, he attended another meeting at which plaintiff’s case was called up for review and since there was no new evidence to present he withdrew the grievance. He also stated that the president and general counsel of the National Union had advised him to withdraw the grievance. He further testified that out of 967 grievances filed during the two-year period preceding August 1963, only one had gone to the fifth step. He admitted that he did not obtain plaintiff’s consent to withdraw the grievance, nor did he notify plaintiff that such had been done. In regard to the practice of handling grievances for members, he stated that: “ * * * the employee who is a member of the union submits his case to be handled by the union officers. When he gives them that case it is theirs to dispose of as long as they go through the steps up to a point where we either feel we have a good case or we don’t have a case. Then the union makes the decision * *

Plaintiff at trial time testified that he was feeling good and had been working whenever he could get work; that he had worked for Spencer Chemical Company until two weeks before trial, handling bags of fertilizer weighing 80 pounds for as much as twelve hours a day; that he had been laid off because of lack of work.

As we have indicated, the trial court sustained the defendants’ motion for judgment for the reason that “under the pleadings, the law and the evidence, the conduct of the defendants herein was arguably conduct, which is protected by the Labor Management Relations or National Labor Relations Act, 29 U.S.C., Section 151 et seq., so that the jurisdiction over the subject matter of this action has been pre-empted by the passage of said Act by the Congress of the United States, and that exclusive primary jurisdiction over this cause is in the National Labor Relations Board, and not in the courts of the state of Missouri.” Upon this appeal the sole contention briefed by appellant is that the trial court erred in setting aside the verdict and entering judgment for the defendants.

The question presented is not an easy one to decide. The difficulties encountered were recognized in the case of Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 480-481, 75 S.Ct. 480, 488, 99 L.Ed. 546, wherein the court stated: “By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. Such was the situation in Garner v. Teamsters, C. & H. Local Union [346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228], supra. But as the opinion in that case recalled, the Labor Management Relations Act ‘leaves much to the states, though Congress has refrained from telling us how much.’ 346 U.S., at 488, 74 S.Ct. at page 164. This penumbral area can be rendered progressively clear only by the course of litigation * * We have considered many cases cited in the briefs but have concluded that our decision must rest, primarily, upon a correct interpretation of four cases decided by the Supreme Court of the United States. The two cases supporting the view that the state court had jurisdiction are International Association of Machinists et al. v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO) et al. v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030. Two cases which tend to support a contrary view are Local 100 of United Association of Journeymen & Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638, and Local No. 207, International Association of Bridge, Structural and Ornamental Iron Workers Union et al. v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646.

In Gonzales, the plaintiff, claiming to have been wrongfully expelled from membership, brought suit against the union and obtained a judgment ordering reinstatement and awarding him damages for loss of wages as well as for physical and mental suffering. The Supreme Court held that § 158 of 29 U.S.C.A. did not exclude the exercise of jurisdiction by the state court. In so ruling the court stated that: “ * * * the protection of union members in their rights as members from arbitrary conduct by unions and union officers has not been undertaken by federal law, and indeed the assertion of any such power has been expressly denied. * * * The National Labor Relations Board could not have given respondent the relief that California gave him according to its local law of contracts and damages. Although, if the unions’ conduct constituted an unfair labor practice, the Board might possibly have been empowered to award back pay, in no event could it mulct in damages for mental or physical suffering. And the possibility of partial relief from the Board does not, in such a case as is here presented, deprive a party of available state remedies for all damages suffered.” 356 U.S. 620, 621, 78 S.Ct. 925.

In Russell, the plaintiff, a nonunion employee, brought a common-law tort action in a state court against a labor union and recovered a judgment for compensatory and punitive damages for malicious interference with his occupation by mass picketing and threats of violence during a strike. Upon review by certiorari the Supreme Court held that Congress had not deprived the victim of tortious conduct of the type there involved of his right of action for all damages suffered. In its opinion the court said: “We conclude that an employee’s right to recover, in the state courts, all damages caused him by this kind of tortious conduct cannot fairly be said to be pre-empted without a clearer declaration of congressional policy than we find here. Of course, Russell could not collect duplicate compensation for lost pay from the state courts and the Board.

“Punitive damages constitute a well-settled form of relief under the law of Alabama when there is a willful and malicious wrong. Penney v. Warren, 217 Ala. 120, 115 So. 16. To the extent that such relief is penal in its nature, it is all the more clearly not granted to the Board by the Federal Acts. Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 10-12, 61 S.Ct. 77, 78-79, 85. The power to impose punitive sanctions is within the jurisdiction of the state courts but not within that of the Board * * *.” 356 U.S. 646, 78 S.Ct. 939.

In Borden, as stated in the syllabus, “Respondent, a member of a local plumbers’ union in Shreveport, La., arrived in Dallas, Tex., looking for a job with a construction company on a particular bank construction project there. Although the foreman of the construction company wanted him, he was unable to get the job, because the company’s hiring was done through union referral, and the business agent of petitioner, the local plumbers’ union in Dallas, refused to refer respondent. Respondent sued petitioner in a Texas State Court, seeking damages for such refusal and alleging that petitioner’s actions constituted a willful, malicious and discriminatory interference with his right to contract and to pursue a lawful occupation; that petitioner had breached a promise, implicit in the union membership arrangement, not to discriminate unfairly or to deny any member the right to work; and that it had violated certain state statutes. Petitioner challenged the State Court’s jurisdiction.” 373 U.S. 690, 691, 83 S.Ct. 1423. The court held that the conduct of the union was arguably protected by § 7 or prohibited by § 8 of the National Labor Relations Act and hence the state court was precluded from exercising jurisdiction. The court said the case was to be distinguished from Gonzales in that Gonzales “ * * * turned on the Court’s conclusion that the lawsuit was focused on purely internal union matters, i. e., on relations between the individual plaintiff and the union not having to do directly with matters of employment, and that the principal relief sought was restoration of union membership rights. In this posture, collateral relief in the form of consequential damages for loss of employment was not to be denied. * * * The suit involved here was focused principally, if not entirely, on the union’s actions with respect to Borden’s efforts to obtain employment. No specific equitable relief was sought directed to Borden’s status in the union, and thus there was no state remedy to ‘fill out’ by permitting the award of consequential damages.” 373 U.S. 697, 83 S.Ct. 1427.

The Perko case involved a plaintiff who was a member of the union. He sued the union and certain of its officers to recover damages resulting from the acts of defendants in demanding that he be discharged from his duties as a superintendent or foreman. He was discharged and alleged that defendants prevented him from obtaining work as a foreman by representing that his foreman’s rights had been suspended. Plaintiff obtained a substantial judgment in the state court and the Supreme Court granted certiorari. In holding that the state court had no jurisdiction the court stated that: “As in Borden, the crux of the action here concerned alleged interference with the plaintiff’s existing or prospective employment relations and was not directed to internal union matters. Indeed the state court itself observed that ‘Plaintiff is not attempting to secure any redress for loss of rights as a member of the union.’ Supra [373 U.S. p. 703, 83 S.Ct. p. 1430]. Thus there was no permissible state remedy to which the award of consequential damages for loss of earnings might be subordinated.” 373 U.S. 705, 83 S.Ct. 1431.

A state court case supporting appellant’s contention is Bailer v. Local 470, International Teamsters, etc., 400 Pa. 188, 161 A.2d 343, 346. Therein the following appears: “Appellant avers in his first claim that the appellee Local breached its fiduciary duty to him in not representing him in good faith before the arbitrator. Our jurisdiction over this claim is clearly not ousted by the Taft-Hartley Act, since appellant is suing solely to enforce his rights as a union member and not to enforce rights of employment * * */’ On the other hand, a state court case tending to support the position of defendants is Webster v. Midland Electric Coal Corp., 43 Ill.App.2d 359, 193 N.E.2d 212 [7].

Upon casual consideration it may appear that Borden and Perko conflict with Gonzales. However, it certainly must be said that those cases do not overrule Gonzales, by implication or otherwise, because both of them refer to and distinguish that case. We think it is clear that Borden and Perko are distinguishable, upon the facts, from the case before us. In Borden the union agent willfully refused to let Borden work even though the prospective employer requested that he be referred for a job. Perko lost his job as a foreman because of a dispute with the union as a result of which the union informed Perko’s employer that the men would no longer take orders from him.

If, by subsequent opinions,1 the court has restricted Gonzales and Russell to the precise factual situations there involved (expulsion from the union and interference with employment by mass picketing and threats), then those cases would not apply in a determination of the case at bar. However, our reading of the various cases does not convince us that such a restricted application of those cases is warranted.

We have concluded that the “Labor Management Relations Act,” 29 U.S.C.A., §§ 157 and 158, has not pre-empted the jurisdiction of the Missouri courts in the case before us. While we think the facts in this case more strongly support state jurisdiction than the facts in Gonzales, we nevertheless are of the opinion that the Gonzales case is decisive of the issue before us.

We do not think that it could reasonably be argued that the conduct of defendants constituted an unfair labor practice in violation of § 158, supra. Defendants contend that such was an unfair labor practice in that it violated § 158(b) and (b) (2) which read, in part, as follows: “It shall be an unfair labor practice for a labor organization or its agents — * * * (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section * * Sections (a) and (a) (3) referred to in the foregoing provide that: “(a) It shall be an unfair labor practice for an employer— * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * It appears obvious to us that those provisions do not apply to the factual situation before us. Here the union had nothing to do with Owens being discharged. It is evident that that idea originated with the employer. There is no evidence that the union desired that some other particular member of the union obtain the job from which Owens had been discharged. Nor is there any evidence to indicate that the union representatives took any affirmative action to prevent the re-employment of Owens. He was not expelled or suspended from union membership. The crux of plaintiff’s claim was that he was wrongfully discharged by his employer and defendants wrongfully failed and refused to process his claim for reinstatement through the “fifth step” and thus he was prevented from being restored to his job. Discrimination was neither alleged nor submitted to the jury as an element of the claim.

Some of the cases have said that Gonzales involved an internal union matter not directly concerning a matter of employment. Such statements may be technically correct but as a practical matter the real complaint of Gonzales was his inability to obtain employment because of his expulsion from union membership. We see no difference in that situation and the situation in the instant case. We are dealing with an internal union matter in that Owens complained of the refusal of the union to fully process his grievance. He, like Gonzales, hoped that as a result of proper union action he would be restored to his employment. If Gonzales involved a purely internal union matter then the case at bar involves a purely internal union matter. The Gonzales case is clearly applicable here and is ample authority for our conclusion that jurisdiction of the subject matter of this case has not been pre-empted by the Labor Management Relations Act, 29 U.S.C.A. § 141 et seq.

Defendants have briefed two alternative contentions which they say support the action of the trial court in entering judgment for them even though we should hold (as we have) that jurisdiction of the subject matter of this claim was not preempted by the Labor Management Relations Act, supra. The first of those contentions is. “ * * * that under the facts and evidence adduced plaintiff has failed to show that the defendant Union was guilty of bad faith or discriminatory motive in refusing to further handle or process plaintiff’s grievance since there was not adequate medical evidence available to show that plaintiff had a meritorious claim.” In considering that point we will view the evidence in the light most favorable to appellant. The essential issue submitted to the jury was whether the union, as plaintiff’s agent: “ * * * arbitrarily, if so, and without just cause or excuse, if so (and thus with legal malice, if so), refused to carry said grievance, difference and disagreement, if any, through the fifth step, if so, and thus prevented, if so, plaintiff from completing pursuit of his administrative remedies in the above respects * *

We have concluded that there was sufficient substantial evidence from which the jury reasonably could have found the foregoing issue in favor of plaintiff. It is notable that no physician actually testified in the case. Both sides were content to rely upon written statements. Three physicians certified that plaintiff was able to perform his regular work. Three other physicians certified that they had taken plaintiff’s blood pressure and that the readings were approximately 160 over 100. It may be inferred that such a reading does not indicate that his blood pressure was dangerously high. Moreover, plaintiff’s evidence showed that he had actually done hard physical labor periodically during the four years following his discharge. We accordingly rule this point adversely to defendants.

The other alternative contention is that the judgment for defendants should be affirmed because “ * * * it was shown that the fourth step of the grievance was held open and not completed until almost the time of the trial of this cause of action and after the filing of the same and that, as a consequence thereof, the plaintiff has failed to exhaust his administrative and contractual remedies.” That point is without merit. Defendants’ evidence showed that they were in complete control of the management of plaintiff’s grievance. One of the defendants failed to answer several letters he received from plaintiff’s attorney inquiring as to what future action was contemplated concerning the grievance. Finally, without plaintiff’s consent, the defendants withdrew it. If plaintiff failed to exhaust his administrative remedies it was entirely the fault of defendants. It is elementary that defendants will not be heard to interpose as a defense to this claim a condition which resulted solely from their action or inaction.

It will he noted that the amount of punitive damages specified in the verdict was $3,300. Reference to the petition discloses that the prayer for punitive damages was in the amount of $3,000. Before the judgment is re-entered, as hereinafter directed, plaintiff should he required to file a remittitur in the amount of $300.

The judgment is reversed and cause remanded with directions to reinstate the verdict and judgment for plaintiff.

All concur.


source: Caselaw Access Project

author: STORCKMAN, Chief Justice.

license: Public Domain

text:
    The STATE of Missouri at the relation of the CURATORS OF the UNIVERSITY OF MISSOURI, Relator, v. Robert NEILL, as President of The Board of Curators of The University of the State of Missouri, Respondent.
    No. 51699.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 1966.

      Paul M. Peterson, Jackson A. Wright, T. Richard Mager, Columbia, for relator.
    Marion S. Francis, St. Louis, for respondent.
   STORCKMAN, Chief Justice.

This is an original proceedings for a writ of mandamus brought by the Curators of the University of Missouri to require Robert Neill, the president of the Board of Curators, to execute revenue bonds which the Board proposes to issue for the construction of parking facilities for motor vehicles on the campus of the University of Missouri at Columbia, which bonds are to be paid, both principal and interest, solely from revenues derived from the operation of the parking facilities. The return of the respondent admits all facts alleged in the petition for the writ. The parties have also filed a stipulation of agreed facts. From these sources the essential facts will be stated.

In keeping with the general trend, the enrollment of the University of Missouri has increased greatly in recent years. In addition to the sites in Columbia and Rolla, new campuses have been established in St. Louis and Kansas City. On June 9, 1965, the Curators adopted a resolution containing many recitals including a table showing the increased enrollment at the various campuses over a period of years. The enrollment figures for the campus in Columbia, with which we are immediately concerned, are: 8,983 in 1955; 11,176 in 1960; and 15,440 in 1964; the estimated enrollment for 1970 is 22,000. The resolution further finds and determines that, by reason of the increased enrollment, the additional persons required for the faculty and staff, and the increased use of motor vehicles by such persons, it is immediately necessary and essential to provide adequate' parking space for motor vehicles; that the general assembly has not appropriated funds for such parking facilities, and the Curators do not have sufficient funds for that purpose; that the only feasible method of defraying the cost of such parking facilities is to issue bonds which shall not be general obligations of the State of Missouri or the Curators, but shall be payable solely from revenue produced by the operation of the parking facilities. The resolution then calls on the administrative officials of the University to submit to the Curators recommendations and definitive plans for carrying out the purposes and intent of the resolution.

Thereafter, on the same day, the Curators adopted another resolution which approved plans and specifications submitted to them for the establishment of additional parking facilities on the campus of the University of Missouri at Columbia and estimating the cost thereof, directed the issuance of parking facility revenue bonds of the Curators of the University of Missouri in the principal amount of four hundred thousand dollars ($400,000) for the purpose of paying such estimated costs, fixed the date, maturities, form, and other details of said bonds, and made covenants for the payment of said bonds and the interest thereon from the revenues to be derived from the operation of said parking facilities. The plans presented to the Curators provided for additional parking facilities having a capacity of 2,649 motor vehicles. The cost of planning, designing, improving and equipping the parking facility was $440,000. The amount the Curators had available to apply on the cost was $40,000. The Curators found and determined that an emergency existed and that the future welfare of the University required the immediate establishment of the parking facility. The resolution then authorized the establishment of the facility at a location specified and the issuance of revenue bonds in the sum of $400,000. The resolution sets out the nature, terms and conditions of the bonds which need not be recited here since there is no challenge to the validity of the bonds in that respect.

The petition for the writ of mandamus alleges that Bond No. 1 was prepared and presented to the respondent as president of the Board of Curators for his signature as provided in the resolution and that the respondent refused to execute the bond.

The stipulation of agreed facts further shows that the number of motor vehicles registered on the Columbia campus in 1955 was 3,312, in 1960 was 7,382, in 1964 was 9,532, and the estimated number in 1970 is 13,000. The stipulation also states that: “The area of the campus at Columbia and the distances separating living facilities from academic facilities are such as to make necessary the use of mechanical means of transportation. This situation exists alike with respect to faculty, students, and staff members who are compelled to live at a distance from the campus because nearer living facilities are not available. The most commonly available and used means is the motor vehicle. Understandably, this produces a problem of providing parking facilities for such vehicles on or near the campus and the educational facilities thereon. No local public transportation system is currently in operation in Columbia.” During each year the University holds many seminars, conferences, educational meetings and athletic events which are attended by large numbers of persons, most of whom come to the University by motor vehicle and require parking facilities therefor. The University hospital and clinics also bring thousands of persons to the campus annually for treatment or to visit patients. Most of these persons come by motor vehicle and require parking facilities. As of January 1, 1965, there was available on the campus at Columbia approximately 3,000 spaces for parking motor vehicles. Since then approximately 450 of said spaces have been lost by reason of the construction of new buildings. It is expected that 1,200 spaces will be lost by reason of the construction of the United States Veterans' Hospital in the early summer of 1966. Because of the lack of available funds, the Curators have been able to provide only approximately 100 parking spaces to replace the spaces so lost and to meet the increasing need for such facilities. New University facilities under construction and which will come into operation within the next year will require approximately 1,200 additional parking spaces. The stipulation concludes with the statement that: “For more than 25 years Relator has been providing parking facilities on its campuses at Columbia and at Rolla, and is now providing parking facilities on all four of its campuses. The need for providing such facilities has thus been recognized by Relator and unchallenged by anyone over a long period of time.”

The primary questions involved are whether the Curators have authority under the Constitution and statutes to construct the parking facility in question and, if such power exists, whether the Curators can borrow money and issue revenue bonds for that purpose. The Curators contend that they have constitutional power supplemented by statutes to perform both of these functions. The constitutional provision, § 9(a) of Art. IX of the 1945 Constitution, V.A. M.S., provides that: “The government of the state university shall be vested in a board of curators consisting of nine members appointed by the governor, * * The following section, 9(b), provides that: “The general assembly shall adequately maintain the state university and such other educational institutions as it may deem necessary.”

The general assembly, in recognition of the broad grant of constitutional power, has also provided in § 172.010, RSMo 1959, V.A.M.S., that “the government” of the University shall be vested in the Board of Curators. Section 172.020 incorporates and creates the University as “a body politic” under the name, “The Curators of the University of Missouri”, and, among other things, grants this public corporation the power to purchase and sell lands and chattels, and to condemn property for its public purposes.

Section 172.260 provides that: “It shall be the duty of the curators to provide for the protection and improvement of the site of the university of the state of Missouri, as selected and established by law; to erect and continue thereon all edifices designed for the use and accommodation of the officers and students of the university, and to furnish and adapt the same to the uses of the several departments of instruction.” Thus, “the government” of the University is committed to the Curators both by the Constitution and the statutes and it is the Curators5 duty “to provide for the protection and improvement of the site of the university” and “to erect and continue thereon all edifices” for the use of the officers and students of the University.

In determining the meaning and application of statutory provisions, this court must ascertain the legislative intent from the words used, if that is possible, and in doing so give to such words their plain and ordinary meaning so as to promote the object and manifest purpose of the statutes. Baker v. Brown’s Estate, 365 Mo. 1159, 294 S.W.2d 22, 25 [3],

The Constitution in general is subject to the same rules of construction as other laws with due regard being given to the broader scope and objects of the Constitution as a charter of popular government, and the intent of the organic law is the primary object to be attained in construing it. State ex rel. Jones v. Atterbury, Mo., 300 S.W.2d 806, 810 [2].

The term “government” has been defined as the act or process of governing, authoritative direction or control, and the office, authority or function of governing. To govern is to control the workings or operation of, and to determine, guide and regulate. Webster’s Third New International Dictionary. These definitions have been approved by this court with respect to the government of the University. State ex rel. Heimberger v. Board of Curators, 268 Mo. 598, 188 S.W. 128.

The word “improvement” has for one of its specific definitions: A permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs. Webster’s Third New International Dictionary. Missouri cases have judicially defined the term in the same manner. See Allen v. Jackson County Savings & Loan Assn., 232 Mo.App. 1098, 115 S.W.2d 7, 9 [4], State ex rel. City of Breckenridge v. Thompson, 322 Mo. 323, 15 S.W.2d 346, 347 [2], R. Williams & Co. v. Farm & Home Savings & Loan Assn., 217 Mo.App. 554, 272 S.W. 1006, 1009, and Dugan Cut Stone Co. v. Gray, 114 Mo. 497, 21 S.W. 854. Among the definitions of “edifice” also used in § 172.260 is a building or structure.

The Curators are more than a mere regulatory agency. It is the clear intent of the Constitution and statutes to confer on the Curators the authority to select sites on which to carry out the functions of the University and to acquire real estate for such purposes by purchase or condemnation. It is also clear that the Curators are authorized to construct improvements on the real estate constituting the site of a University function. In fact such authority is spelled out as a duty of the Curators by § 172.260. For the possible origin of this grant of power and imposition of duty, see Constitution of Missouri 1820, Art. VI, § 2, V.A.M.S., Vol. 1, p. 91, Laws 1889, p. 265, and Laws 1909, p. 889.

It is too late- in the motor age to contend successfully that parking facilities are not a necessary adjunct of the proper use of improved real estate. One does not have to travel far to see their inevitable presence at modern shopping centers, factories, schools, churches, apartments and even private residences. A place to park an automobile is indispensable to its use. The larger businesses and institutions find it necessary to provide parking facilities for the persons with whom they deal since streets are no longer adequate or available for that purpose.

It is an admitted fact that for more than twenty-five years the Curators have been providing parking facilities on its campuses in Columbia and at Rolla and more recently on the campuses established at St. Louis and Kansas City. The administrative interpretation given a constitutional or statutory provision by public officers charged with its execution, while not controlling, is entitled to consideration, especially in case of -doubt or ambiguity. Foremost Dairies, Inc., v. Thomason, Mo., 384 S.W.2d 651, 659 [6]; England v. Eckley, Mo., 330 S.W.2d 738, 743-744 [6]; Rathjen v. Reorganized School Dist. R-II, 365 Mo. 518, 284 S.W.2d 516, 526 [22]. The parking facility in question is a structure or improvement which the Curators are authorized to construct on University property. Rathjen v. Reorganized School Dist. R-II, 365 Mo. 518, 284 S.W.2d 516, 527 [27].

Our next inquiry concerns the power of the Curators to issue revenue bonds for the money necessary to defray the cost of constructing the parking facility. The respondent contends that the Curators have no express or implied power to issue revenue bonds for this purpose. This contention must be denied on the authority of State ex rel. Curators of University of Missouri v. McReynolds, 354 Mo. 1199, 193 S.W.2d 611, a decision of this court en banc, which held that the Curators had implied power to issue revenue bonds for money borrowed to build dormitories and dining room facilities to take care of increased enrollment at the University. Regarding this aspect of the case, the Mc-Reynolds opinion states:

“ * * * while the curators may have no general implied power to borrow money and issue securities, still it may be fairly implied from their express powers that under the particular circumstances they have the power presently to capitalize such future accumulation of fees even though they must borrow to do so. By borrowing by the method contemplated the curators do not create a general obligation, only a limited one. The only funds pledged are those to be realized from the operation of the particular properties to be built out of the proceeds of the bonds. There is no pledge of funds to be ultimately realized from tax revenues.
“ * * * The broad powers historically exercised by the curators without specific legislative authority or appropriations present a different situation from an ordinary municipal corporation depending entirely upon taxation for its support and with powers rigidly limited by statute or charter.
“ * * * By issuing the Dormitory Revenue Bonds the curators are merely adopting a modern device to implement the powers they have long and properly exercised.” 193 S.W.2d at 613.

The respondent further contends that the Curators are precluded from issuing the revenue bonds by that portion of § 172.250 which provides that the Board of Curators shall not create in any one year any indebtedness above what it can pay out of the annual income of that year. This contention must also be denied on the authority of State ex rel. Curators v. Mc-Reynolds wherein it was held that the obligation created by revenue bonds payable out of income to be realized from the particular property acquired with the proceeds of the bonds is not a “debt” or an “indebtedness” within the scope of constitutional and statutory limitations. 193 S.W.2d 611, 613 [7]. See also Petition of Board of Public Buildings, Mo., 363 S.W.2d 598, 605 [1].

Chapter 176, RSMo 1959, V.A.M.S., which deals with revenue bonds of educational institutions, was approved July 3, 1946, shortly after the McReynolds decision was rendered. See Laws of Missouri 1945, pp. 1715, 1720. The respondent contends that the Curators are precluded from issuing revenue bonds by reason of the fact that the projects included in Chapter 176 specify dormitories, dining room facilities and social and recreational buildings. The chapter covers educational institutions in addition to the University. There is no provision in Chapter 176 or elsewhere purporting to prohibit the Curators from issuing revenue bonds in the manner approved by the McReynolds case and as here proposed. In view of the “broad powers historically exercised by the curators without specific legislative authority” (193 S.W.2d 613), we will not imply that a restriction is intended by Chapter 176 when none is expressed.

Further the respondent says the writ should be denied because the Constitution imposes on the general assembly the duty to maintain the University. As demonstrated in the McReynolds case, the University has had support from private and public grants, and tuition and fees, and there are no constitutional or statutory provisions designed to limit the University to appropriations made by the general assembly. In fact the contrary appears. This contention is also denied.

We have considered all questions presented and decided them adversely to the respondent. Accordingly it is ordered that the peremptory writ of mandamus be issued.

All concur except FINCH, J., not participating.


author: HYDE, Presiding Judge.

text:
    CONDUIT INDUSTRIAL REDEVELOPMENT CORPORATION, a Corporation, Plaintiff, v. William D. LUEBKE et al., Defendants, Garnet E. Schultz and Edna Schultz, Defendants-Appellants, Josephine Kempen et al., Defendants-Respondents.
    No. 51183.
    Supreme Court of Missouri. Division No. 1.
    Dec. 13, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied and Opinion Modified on Court’s Own Motion Jan. 10, 1966.

      W. W. Sleater, St. Louis, for appellant.
    Gunn & Gunn, Donald Gunn, Donald Gunn; Jr., James F. Gunn, St. Louis, for respondents.
   HYDE, Presiding Judge.

In a condemnation proceeding to condemn eleven parcels of land in St. Louis, defendants Schultz (hereinafter called appellants) filed a cross-claim for $10,200.00 actual damages and $100,000.00 punitive damages against defendants Kempen (hereinafter called respondents) and also a counterclaim for specific performance against plaintiff condemnor. This counterclaim has been dismissed as has also an appeal from an order overruling appellants’ motion to quash the court’s order requiring them to vacate parcels 8 and 9. The court dismissed appellants’ cross-claim and they have appealed from the order of dismissal.

It was alleged in the cross-claim that on November 25, 1957, respondents signed a sales contract by which they agreed to sell appellants land designated parcels 8 and 9 in the condemnation proceeding for $3,000.-00. Appellants paid $200.00 and agreed to pay the balance on the stated closing date of “on or before 12/25/57.” Appellants did not allege they ever tendered this balance but alleged that the sellers’ attorney assured appellants “that the contract was in full force and effect and would be closed upon the passage of time, which in the opinion of the said attorneys for the sellers would give a clear marketable title” to them, which representations “lulled” them “into a feeling of security concerning the property” up to July 26, 1961, which was after respondents had made a settlement with the condemnor. The condemnation proceeding was commenced November 25, 1959. In their report filed January 30, 1961, the commissioners fixed damages for parcel 8 at $9,000.00 and for parcel 9 at $4,000.00; but after condemnor filed exceptions, respondents settled for $3,000.00 for parcel 8 and $566.71 for parcel 9, which settlement was approved by the court in June 1961. Appellants were parties to the condemnation proceeding because of their interests in other parcels condemned but were not named in connection with parcels 8 and 9, their contract not being recorded, although they were in possession apparently using these parcels in connection with their other land.

Appellants claim Civil Rule 55.49, V.A. M.R., gives them the right to file the cross-claim for damages for breach of contract to sell them land condemned in this condemnation proceeding. Appellants rely on Civil Rule 86.01 providing that in condemnation proceedings (with exceptions relating to constitutional charter cities) “the procedure to be followed shall be that provided by these rules.” They say this brings into condemnation proceedings all the other civil rules and authorizes them to file this cross-claim.

Our cross-claim Rule 55.49 is the same as Federal Rule 13(g). In United States v. 76.15 Acres of Land, More or Less, in City of Alameda, Alameda County, Cal., 103 F.Supp. 478, it was held that Rule 13(g) was not applicable to- cross-claims of tenants against their lessor for damages for breach of a lease of the property condemned. The court said this “raises the very fundamental question as to whether codefendants in a condemnation action should be permitted to litigate between themselves in the condemnation proceedings any other issue than their respective rights to compensation for the property being taken.” The court holding such cross-claims could not be litigated therein said: “[T]he cross-complaint which asks for damages for an alleged breach of the lease between the University and its tenant does not arise out of the same transaction or occurrence or relate to any property that is the subject matter of the condemnation action. The action for breach of the lease is sounded in contract and is in personam, whereas the condemnation proceeding is an action in rem, based on the power of eminent domain which resides in the government of the United States.” A different ruling was made in United States v. Merchants Matrix Cut Syndicate, (USCA 7) 219 F.2d 90, on the court’s construction of Federal Rule 71A on condemnation proceedings. (However, the court found no merit in the tenants’ cross-claims because they were for damages which could not be condemnation compensation and reversed their judgments against their lessor.) This ruling permitting such cross-claims is criticised in Barron and Holtzoff Federal Practice and Procedure, Sec. 1516, saying: “When the final sentence of Rule 71A (e) is read in this context, it would seem that all pleadings or motions are barred except an answer stating objections or defenses to the taking of the property. Since a cross-claim against a co-defendant is not within this category, it should be held that such a cross-claim is barred by Rule 71A(e) and thus that Rule 13(g) cannot apply in condemnation proceedings.” As to the California case, (103 F.Supp. 478) Barron and Holtzoff Federal Practice and Procedure, Sec. 1516, although considering it to reach the right result, makes the following comment: .“Whether the ‘transaction or occurrence’ test is met may well turn on whether the lessee is claiming damages from the landlord because the condemnation will result in his dispossession, or whether he is seeking redress for some breach of the lease unrelated to the condemnation. But it would seem that in any event the cross-claim relates to the property which is the subject of the original action, and thus that it meets the test of Rule 13(g).”

Chapter 523, RSMo, V.A.M.S., provides for condemnation proceedings and an examination of its provisions is persuasive that it is intended as a special statutory proceeding largely containing its own specific procedures for condemnation issues only. It provides who may be made parties and where the condemnation action shall be filed — §§ 532.010 and 523.020; when and how the summons may be served or published — § 523.030; the time and manner of the commissioners making their report and the parties taking exception thereto is also expressly provided — §§ 523.040 and 523.050. Provision is made for the ascertainment by a jury of the amount of damages “under the supervision of the court, as in ordinary cases on inquiry of damages” —§ 523.050, subd. 2. Civil Rule 86 is intended to supplement Chapter 523 procedurally.

Where a private corporation which has the power to exercise the right of eminent domain damages property for a public use, the person injured may have his damages ascertained under § 523.090. Beetschen v. Shell Pipe Line Corporation, Mo.App., 248 S.W.2d 66; Riggs v. City of Springfield, 344 Mo. 420, 126 S.W.2d 1144, 122 A.L.R. 1496. In Arkansas-Missouri Power Company v. Hamlin, Mo.App., 288 S.W.2d 14, 18 [9, 10], the court stated: “Condemnation proceedings are sui generis and the civil code does not apply to them except in so far as the legislature specifically makes it applicable. State ex rel. Fugatt v. Hawkins, 241 Mo.App. 640, 264 S.W.2d 387. The landowner is not required to make any specified pleading in order to recover full damages for the appropriation of his land. Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw, 360 Mo. 1211, 233 S.W.2d 6, 11.” See also St. Louis Housing Authority v. Evans, Mo.Sup., 285 S.W.2d 550, 553. Although Civil Rules procedures may be applicable where necessary to fill gaps and expedite proceedings, we do not consider that all civil procedure has been grafted onto condemnation proceedings without limitations as to controversies involving issues unrelated to condemnation.

In Laclede Gas Co. v. Abrahamson, Mo.Sup., 296 S.W.2d 100, 103, 61 A.L.R.2d 1286, we held that adjoining landowners had no absolute right to intervene in a proceeding to condemn underground gas storage easements. We said: “The purpose of this action is to take rights in certain described lands and to determine the compensation due the owners thereof for the rights taken from them. Persons not made defendants who had an interest in those lands would have an absolute right to intervene, but persons who are owners of adjoining lands and are only entitled to consequential damages to such lands do not have the interest in the action necessary to give them an absolute right to intervene.”

Respondents contend that appellants’ cross-claim is inapplicable to and cannot be considered in this condemnation proceeding because excluded by the last clause of the last sentence of Civil Rule 86.08, as follows: “Notwithstanding said exceptions, the condemner may, after paying the amount of the commissioners’ award to said clerk of the court for the owner or owners of any property involved, take possession of the property or subject it to the public use set out in the condemnation petition, and any subsequent proceeding shall only effect the amount or division of the compensation allowed.” (Emphasis ours.) This is a strong indication of intention to limit condemnation procedure to condemnation issues, at least after compensation has been determined. We see no reason why it should not be applicable when the compensation is paid directly to the record owners instead of being paid into court and there is no claim that anything more is due to anyone from the con-demnor. This cross-claim was filed (August. 11, 1961) only after respondents had settled with the condemnor and been paid for the land and had no further interest in the condemnation case. Appellants' in their cross-claim are not claiming any interest in the land condemned (they dismissed their counterclaim for specific performance) nor in any award or settlement for it but only are seeking damages for a claimed breach of contract of sale by the owners. Appellants seek no part of the condemnation award or settlement but ask for a personal judgment for damages against the landowners for an alleged breach of a contract of sale. Clearly appellants seek redress for an alleged breach of contract unrelated to the condemnation. In the above-cited federal cases, the rights of the lessees of the land involved were condemned along with the interest of their lessor therein, so that their cross-claim reasonably could be held to relate to the property that was the subject matter of the original action. In this case, appellants had no interest to be condemned and claimed only a right to damages against the owner for breach of a contract of sale. Our view is that appellants had no right to have such a cross-claim filed and tried in this condemnation proceeding; and the court ruled correctly in dismissing it.

The judgment is affirmed.

HENLEY and DONNELLY, JJ., concur.

HOLMAN, J., dubitante.


author: WELBORN, Commissioner.

text:
    Norvel STAAT, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, (Defendant) Appellant.
    No. 51044.
    Supreme Court of Missouri, Division No. 1.
    Jan. 10, 1966.

      Burton M. Greenberg, St. Louis, London & Greenberg, St. Louis, of counsel, for respondent.
    John D. Schneider, St. Louis, for appellant.
   WELBORN, Commissioner.

This is an action for personal injuries arising out of an intersectional collision between a milk truck operated by plaintiff Norval Staat and a bus of the defendant St. Louis Public Service Company. Defendant counterclaimed for damage to its bus. The jury’s verdict was for plaintiff for $35,000 and against defendant on its counterclaim. After its motion for new trial had been overruled, defendant appealed from the judgment on plaintiff’s claim and its counterclaim.

The collision occurred at around 5:00 a. m., July 19, 1961, at the intersection of North Florissant and Branch Streets, public streets of the City of St. Louis. North Florissant is an asphalt paved street 36 feet wide at the Branch Street intersection. By ordinance of the City of St. Louis, North Florissant is a major street at such point, and pursuant to ordinance a stop sign had been erected on Branch at North Florissant. The ordinance required drivers to “stop at such ‘stop’ sign and yield the right-of-way to drivers and pedestrians upon such major streets” and “not [to] proceed through the intersection or into the major street until safe to do so.” Although the evidence was conflicting on the question of whether or not the streets were slick from rain at the time of the collision, the jury could have found from plaintiff’s evidence that, although there was some precipitation, the streets were dry.

Defendant’s Walnut Park Line bus was proceeding south on North Florissant down a 5% grade toward the Branch Street intersection. Plaintiff, westbound on Branch Street, was driving a milk truck, an International, 22 feet in length.

The collision occurred when the truck had proceeded into and almost through the intersection, the front of the truck being approximately 5 feet beyond the west line of North Florissant. The bus, 8 feet in width, was operating some 3 feet from the west curb line on North Florissant. The front of the bus struck the right side of the truck and the truck overturned. We are not here concerned with the nature or extent of plaintiff’s injuries.

According to plaintiff, he observed the bus “about” 700 feet away when he came to the intersection and made a complete stop at the stop sign. He looked to his left or to the south and back to the right, action which took from 3 to 5 seconds, and saw the bus again “approximately” 350 to 400 feet away, moving at about 30 miles per hour. Without looking again to either the north or south, plaintiff entered the intersection with his truck in low gear and accelerated at a gradual even rate to 15 miles per hour at which time, without any sort of warning, the bus struck his truck.

Plaintiff’s witness Ellersieck, a passenger on the bus, testified that he saw the truck stopped even with the stop sign when the bus was 280 to 300 feet from the intersection and that the truck did not move from that position until the bus was from 75 to 100 feet from the point of impact. This witness estimated the speed of the bus at 25 miles per hour at that time. Another passenger testified that he did not feel the brakes being applied prior to the collision.

Defendant’s witness Lay, operator of the bus, testified that he first saw plaintiff’s truck when it was 90 feet east of North Florissant, traveling at 25 miles per hour. As the truck approached the intersection, plaintiff passed the stop sign without stopping and shifted gears when the bus was about 75 to 100 feet away. Plaintiff entered the intersection at 15 miles per hour, with the bus 60 to 70 feet away, traveling at 20 to 25 miles per hour. Lay applied the brakes at that time, and when the vehicles were 20 feet apart, he applied emergency pressure, causing the bus to skid 20 feet, swerve about a foot to the left and strike the truck at 5 miles per hour. The truck’s speed had increased to approximately 20 miles per hour at the time of impact.

Plaintiff’s expert witness testified that the bus could have been stopped on a wet asphalt surface on a 5% downgrade in 42 feet at 20 miles per hour and within 61 to 80 feet at 25 miles per hour, including reaction time. Defendant’s evidence based on tests of the bus at the scene and on expert opinion was that the minimum stopping distance of the bus on dry pavement on the 5% grade was 60 feet at 20 miles per hour and 81 feet at 25 miles per hour, and that on the wet pavement, concerning which there was testimony, the minimum stopping distance at the speed at which the bus was traveling was 75 feet.

Plaintiff’s petition alleged humanitarian negligence on the part of the bus driver in failing to stop or reduce speed and plaintiff’s submission was on such basis. On this appeal, defendant contends that plaintiff made a submissible case on neither theory and that, therefore, its motion for a directed verdict at the close of all the evidence should have been sustained.

Although we agree with appellant that plaintiff’s testimony as to distances (for example, that the bus was 350 feet away when he started from his stop at the sign) is inaccurate, nevertheless, the distances related were estimates only and do not preclude plaintiff’s use of more favorable evidence not inconsistent with his basic theory. Lay v. McGrane, Mo.Sup., 331 S.W.2d 592, 596 [3-5]; McDonough v. St. Louis Public Service Company, Mo.Sup., 350 S.W.2d 739,744 [3]; Sundermeyer v. Lentz, Mo.Sup., 386 S.W.2d 16, 20 [2-4]; Stout v. St. Louis County Transit Company, Mo.App., 285 S.W.2d 1, 4 [1, 2], The testimony of plaintiff’s witness Ellersieck and of defendant’s driver was reasonably consistent insofar as speeds and distances were concerned. Their estimates accord with plaintiff’s basic theory that after he had entered the intersection and after he entered a position of peril, defendant could have avoided the collision by stopping or slackening his speed. Appellant by mathematical formulae has computed that plaintiff entered a position of peril at 15.47 feet from his starting point, at which time at an attained speed of 8.42 miles per hour he could have stopped in 16.84 feet, or .69 feet short of the bus’s path. Appellant then computes, based on various estimates, the position of the bus at that instant, its stopping distances at various speeds and concludes that the evidence shows conclusively that the bus driver could not have avoided the collision within the time and distance available to him. However, because of the probability of human errors in the estimates relied upon, such matters cannot ordinarily be determined with mathematical precision. In any event, we are of the opinion that there was evidence here upon which plaintiff may rely and from which the jury could have found that the driver could have, after plaintiff entered a position of peril, avoided the collision by stopping or slackening the speed of the bus. The driver himself testified that he moved his foot from the accelerator to the brake “when I saw there was real danger.” He stated that the bus was 70 feet from the point of collision when he did so. Evidence placed the speed of the bus at 20 to 25 miles per hour at that time and plaintiff’s expert witness testified that at such speed and under the conditions then and there existing, the bus could have been stopped within 70 feet. The driver acknowledged that on his deposition he had stated that at 20 miles per hour he could have stopped the bus in from 40 to 50 feet. Furthermore, in view of the testimony of plaintiff’s witness that he was unaware of any application of the brakes on the bus prior to the collision, the jury might also have found that the speed of the bus was not slackened from the time that the driver “saw there was real danger” and could have concluded that even a slight slackening of speed would have permitted the truck to have moved some 14 feet further to the west and the collision would have been avoided. We find that plaintiff did make a submissible case.

Appellant’s further assignments of error relate to the instructions. Plaintiff’s Instruction No. 7 combined a converse to defendant’s sole cause instruction (No. 6) and a contributory negligence instruction on defendant’s primary negligence submission of its counterclaim (No. 13). On this appeal, appellant’s assignment of errors with respect to Instruction No. 7 is as follows:

“II.

“The court committed reversible error in giving instruction No. 7, which contained a misstatement of the law, was in conflict with instructions Nos. 13, 6 and 4, and altered plaintiff’s theory of recovery to the end that the jury could only have been confused and misled thereby.

“A. Instruction No. 7 is a misstatement of the law in that it charges the defendant with a higher duty than the law requires.

“B. Instruction No. 7 is in conflict with instruction No. 13 in that it takes away the right-of-way given the defendant by the law and by instruction No. 13.

“C. Instruction No. 7 is in conflict with instruction No. 6 in that it permits the jury to find that the defendant failed to exercise a duty that was not imposed on defendant by law and prevents the jury from considering plaintiff’s conduct as the sole cause of the collision.

“D. Instruction No. 7 is in conflict with instruction No. 4, and alters plaintiff’s theory of recovery in that it allows the jury to find that plaintiff was in imminent peril at a time when plaintiff was not in immediate and certain danger.”

In its motion for new trial (which contains the specific grounds of error urged against the instruction in the trial court, Civil Rule 70.02, V.A.M.R.), the following errors were assigned:

“28. That the Court erred in giving plaintiff’s Instruction No. 7 to the jury for the following reasons, among others:

“a) That it is in conflict with Instruction No. 6;

“b) Under Instruction No. 7 the jury is permitted to find that the operator was negligent under other instructions and bars the sole cause defense, when, in fact, the jury could not find the operator negligent under other instructions if they found the facts hypothesized in Instruction No. 6.

“c) Instruction No. 4 submits humanitarian failure to stop or slacken based on plaintiff’s story (by which he is bound). Instruction No. 6 submits sole negligence of plaintiff on operator’s story or on evidence of independent witnesses that plaintiff entered the intersection when the bus was so close as to be immediate hazard. The two theories are at war with each other, and Instruction No. 7 is confusing and places the two theories in conflict by advising the jury that plaintiff can recover regardless of which story the jury believes.

“d) Instruction No. 7 erroneously submits general negligence to the jury and does not confine the jury’s consideration to the issues submitted under the instructions and allows the jury a roving commission.”

Comparison of the assignments of error here with those specified in the motion for new trial shows that appellant has attempted to raise here objections to the instruction which were not presented in the trial court. The motion for new trial does not charge, as do the specifications here, particularly II-A and II-C, that the instruction imposed upon defendant a greater duty than the law requires. No mention whatsoever is made in the motion for new trial of conflict between Instructions Nos. 7 and 13, specified here in II-B. The motion for new trial does refer to conflict between Instructions Nos. 7 and 4, but the conflict so specified in no manner relates to the error now based under II-D- upon such claimed conflict. We find none of the specifications here asserted to have been raised by the motion for new trial and therefore the objections to Instruction No. 7 are not before us for review. Dial v. Seven-Up Bottling Company, Mo.Sup., 373 S.W.2d 53, 58 [10-12]; Wren v. St. Louis Public Service Company, Mo.App., 355 S.W.2d 365, 372 [12].

Appellant next attacks Instruction No. 15, given at the request of plaintiff. This instruction was a converse to defendant’s Instruction No. 13, submitting its counterclaim based upon primary negligence in plaintiff’s failing to yield the right of way. The first sentence of Instruction No. 13 read as follows:

“The Court instructs the jury that in regard to defendant’s counter claim an ordinance of the City of St. Louis provides that every driver approaching a major street where a stop sign is erected shall yield the right-of-way to drivers upon such major streets and shall not proceed through said intersection or into the major street until safe to do so.”

After hypothesizing factual matters, the instruction told the jury that “if you find that in the exercise of the highest degree of care plaintiff should have yielded the right of way through said intersection to the bus but that he failed to do so and was thereby negligent,” etc., the verdict on defendant’s counterclaim should be for defendant.

Instruction No. 15, here under attack, read as follows:

“The Court instructs the jury that if you find and believe that plaintiff did not violate the major stop sign as submitted in instruction No. 13, then your verdict must be for the plaintiff on defendant’s counterclaim, as submitted to you in instruction No. 13.”

Appellant here contends that Instruction No. 15 directs a verdict for plaintiff if he “did not violate the major stop sign,” but that defendant’s Instruction No. 13, which it purported to converse, did not submit violation of the stop sign as negligence but submitted failure to yield the right of way. Although there is no doubt that the language of Instruction No. 15 is not precisely accurate, in our opinion the language employed was not such that jurors of ordinary intelligence would have been misled and confused by it. Instruction No. 13 correctly told the jury that one of the duties of a driver who approaches a major street at which a stop sign is erected is to yield the right of way to vehicles upon the major street. The other duty, not referred to in Instruction No. 13, is to stop. Failure in either respect constitutes a violation of the ordinance imposing the duty, not of the stop sign. When Instruction No. 15 spoke of violation of “the major stop sign as submitted in Instruction No. 13,” reference to that instruction clearly revealed that the violation there referred to was failure to yield the right of way. Since the instructions must be read as a whole, we believe that the jury would reasonably have understood that the violation referred to in Instruction No. 15 was violation of the duty referred to in Instruction No. 13. We do not believe that jurors, viewing the matter in the light of the entire submission and in the light of the arguments to the jury, in which the emphasis was upon the negligence in failing to yield the right of way, would have, as appellant contends, taken Instruction No. 15 to authorize a verdict for plaintiff on the counterclaim if the jury found merely that plaintiff stopped at the stop sign. Had Instruction No. 15 authorized a verdict for plaintiff if the jury found merely that plaintiff did stop at the stop sign, the instruction would have been erroneous for failure to converse the act of negligence submitted in defendant’s instruction. Such was the situation in Wiseman v. Jackson, Mo.App., 309 S.W.2d 356, Phillips v. Vrooman, 361 Mo. 1098, 238 S.W.2d 355, and Willard v. Bethurem, Mo.App., 234 S.W.2d 18. In our opinion, the jury would have understood that Instruction No. 15 authorized a verdict for plaintiff only on the finding of no violation of the duty submitted under Instruction No. 13 and not on the absence of violation of some other and different duty.

Appellant’s final attack on Instruction No. 15 is that, by its concluding phrase, “then your verdict must be for the plaintiff on defendant’s counterclaim, as submitted to you in Instruction No. 13,” a verdict was directed, on the basis of Instruction No. 15, in favor of plaintiff on defendant’s counterclaim, without reference to defendant’s right of recovery under its humanitarian submission. (A similar attack is also directed at Instruction No. 7, but appellant acknowledges that its motion for new trial made no such specification as to Instruction No. 7. Therefore, that matter is not before us for review.) As the cases relied upon by appellant hold (Wilson v. Tonsing, Mo.Sup., 375 S.W.2d 140, Wabash R. Co. v. Dannen Mills, Inc., Mo.App., 279 S.W.2d 50), an instruction by defendant on its counterclaim charging primary negligence against plaintiff is erroneous if it ignores the plaintiff’s verdict-directing humanitarian submission. However, that is not precisely the question here presented. The situation here is more nearly comparable with that presented in Sauer v. Winkler, Mo., 263 S.W.2d 370, likewise relied upon by appellant. In Sauer, plaintiff submitted her claim on both primary and humanitarian negligence. Defendant submitted a contributory negligence instruction and an instruction that defendant’s duty to act under the humanitarian doctrine did not arise until the deceased was in a position of imminent peril. Defendant’s contributory negligence instruction, after hypothesizing the matters relied upon, stated: “(T)he court instructs you that plaintiff * * * cannot recover under Instruction No. 1, and your verdict will be in favor of the defendant, * * In discussing the attack on the instruction, the court stated (263 S.W.2d 1. c. 373):

“The question then is whether instructions A and B, respectively, did in fact ignore plaintiff’s hypothesized recovery on her respective primary and humanitarian negligence submission.
“Defendant. did make some attempt to limit instruction A to plaintiff’s primary negligence submission and to limit instruction B to plaintiff’s humanitarian submission. A, after hypothesizing a finding of deceased’s contributory negligence, closes: ‘then the court instructs you that the plaintiff, Eugenie B. Sauer, cannot recover under instruction No. 1, and your verdict will be in favor of the defendant, Robert Wink-ler.’ Then follows the direction that such is the law irrespective of a finding of negligence on the part of defendant.
“Now, it was correct to tell the jury that upon a finding by them that deceased was contributorily negligent, plaintiff could not recover under instruction No. 1. But it was not technically correct to follow that statement with the further direction: ‘and your verdict will be in favor of the defendant, Robert Winkler.’ This, because the jury was to return only one verdict as to the entire case and the fact that plaintiff could not recover under instruction 1 would not prevent plaintiff’s recovery under instruction 2, and thus a finding that deceased was contributorily negligent would not alone justify a verdict for defendant. The instruction either should have eliminated the direction of a verdict for defendant, or should have included a qualifying phrase such as ‘unless you find for plaintiff under instruction 2.’
“However, were it not for the language of defendant’s instruction B (which we presently discuss), or if instruction B had like A’s reference to instruction 1, referred in its directive part to instruction 2, we should be faced with a different question than that confronting us. In other words, under the supposed circumstance, it could he said that the jury would have understood that the meaning of each instruction was that their ‘verdict’, in the sense of their ‘finding’, was to be for defendant under instruction A as to instruction 1 only, and was to be for defendant under instruction B as to instruction 2 only; and that the jury would not have understood that their verdict as to the entire case was to be for the defendant on a finding of the hypothesized matters in either instruction 1 or 2.”

In this case, we do not have an instruction comparable to Instruction B, the source of error in Sauer. Here plaintiff’s Instruction No. 15 is more nearly comparable to defendant’s Instruction A in Sauer. In fact, Instruction No. 15 is even more specifically limited to defendant’s primary negligence submission alone than was Instruction A in Sauer. Here the language employed was that the verdict should be for plaintiff on defendant’s counterclaim as submitted in Instruction No. 13. In Sauer, the concluding language of Instruction A was: “[Yjour verdict will be in favor of the defendant.” Only by reference to the preceding language could this have been found to have been limited to the finding on the primary negligence submission alone, and not on the case as a whole. Here, the language objected to specifically refers to the counterclaim submitted in Instruction No. 13. As pointed out in Sauer, the language preferably should have referred to a “finding” on the Instruction No. 13 submission. Again, however, we think that it reasonably can be said “that the jury would have understood that * * * their ‘verdict’, in the sense of their ‘finding’, was to be for defendant” under Instruction No. 15 as to Instruction No. 13 only. The fact that the so-called “tail” of plaintiff’s Instruction No. 16 refers to the jury’s “finding” on the Instruction No. 13 counterclaim submission does not, as appellant argues, preclude the conclusion that the jury would have accorded a similar meaning to the term “verdict” as used in Instruction No. 15.

Nor do we agree with appellant that the effect of plaintiff’s Instruction No. 15 was to limit the jury’s consideration of defendant’s counterclaim to its primary negligence submission, to the exclusion of its humanitarian submission under its Instruction No. 9. Appellant calls our attention to the fact that “there was no parallel converse to Instruction No. 9 to suggest that the instructions were limited in their effect to only their primary submission.” Plaintiff was not required to submit a parallel converse to Instruction No. 9. The language of Instruction No. 15 was sufficient to show that it was limited only to the primary submission under Instruction No. 13.

Finding no error, 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.


author: EAGER, Presiding Judge.

text:
    Carmello MIGNECO, Appellant, v. Fred E. ECKENFELS, Respondent.
    No. 51072.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied. Jan. 10, 1966.

      Murphy & Roche, Byron A. Roche, St. Louis, for appellant.
    Carter, Fitzsimmons & Brinker, Bernard C. Brinker, Clayton, for respondent.
   EAGER, Presiding Judge.

This is an action for personal injuries sustained in an automobile collision. Mr. Eckenfels originally filed the suit against Mr. Migneco and the latter filed his counterclaim for personal injuries in the sum of $35,000. Thereafter, the original plaintiff’s cause was dismissed upon stipulation and, upon motion and an order of court, the parties were “redesignated” so as to make Migneco the plaintiff and Eckenfels the defendant. Such an order is somewhat unusual but, since the case has proceeded on that basis we shall acquiesce, considering Migneco as the plaintiff. The verdict was for defendant and plaintiff has appealed.

The collision occurred on September 30, 1961, at about 2:45 p. m. Plaintiff was driving a 1958 Ford north on Kingston Avenue in St. Louis County and defendant was driving a 1956 Buick south on the same street with his wife and her sister as passengers. Both were approaching (at varying distances) the “T” intersection of Southampton Drive, a 26-foot wide street which turned off to the west. Kingston was 44 feet wide, having four eleven-foot lanes. By expert testimony and a plat it was shown that there was a crest on Kingston several hundred feet north of Southampton and that the downslope extended for another 100-200 feet to the south; there were stabilized shoulders on both sides of Kingston; its surface was asphaltic concrete. The day was overcast, but the witnesses disagreed as to whether the surface was damp, dry, or wet

Plaintiff testified in substance: that the road was damp, but nearly dry; that he was driving north in the outside lane, having no intention of turning at Southampton; that he had been traveling at 35^10 miles an hour, but had slowed some because the brake lights of a car about 200 feet north came on; that he then saw defendant’s Buick coming across the yellow center line “right to me”; that he swung hard to his left and stopped at an angle, with most of his hood over the center line; that the Buick did not change its speed, did not swerve, and continued to come toward him “kind of straight” until it hit the right side of his car, the impact being from the front door to the rear fender; that the Buick was about 150 feet away when he first saw it and about 100 feet away when he stopped; that he could not estimate its speed but it was “fast”; that there was no other car in front of him except the one about 200 feet north. Plaintiff was rendered unconscious and suffered substantial injuries. Photographs in evidence show crushing damage to the right side of plaintiff’s car from the windshield to the rear fender. Plaintiff testified also that the impact was in the northbound lane next to the center line; that he did not skid, and that he was not making a left turn.

Defendant Eckenfels testified: that it was drizzling and the road was wet; that he was driving at all times in the southbound curb lane; that plaintiff’s car came out from behind a car which was stopped in the inner northbound lane at Southampton with its left-turn light on; that defendant was “right north of Southampton” when he first saw plaintiff; that he was traveling between 30 and 35 miles an hour and applied his brakes, but could not say if he skidded; that at the time of the impact plaintiff’s car was “across both south bound lanes,” but was moving broadside toward him; that he did not change from the curb lane before the collision, or swerve; that he was still in the curb lane when the collision occurred, and he does not recall whether his car slowed up; he had no idea how far he traveled after he saw plaintiff, nor could he state his stopping distance. The impact occurred at or just south of the Southampton intersection and the cars came to rest on the west shoulder, entirely off the pavement. Defendant’s car was admittedly in good mechanical condition prior to the collision.

A consulting engineer, Edward W. Bil-horn, prepared plats which were received in evidence, and testified from a considerable experience concerning stopping distances. His testimony was, in substance, that on a dry pavement a 1956 Buick could be stopped at 30 miles an hour on this street and on its maximum slope in 95-100 feet, and at 35 miles an hour in 120 feet; on a damp pavement, in 125 feet and 135-140 feet, respectively; on a wet pavement, in 132 and 175 feet, respectively; all of those figures included reaction times. He also testified that as the slope flattened out, as was the situation for about 150 feet north of Southampton, a car could be stopped in a shorter distance than stated.

A county policeman, Harry Wilde, testified that the cars were resting partly on a lawn and partly on the shoulder just south of Southampton; that defendant made an oral statement that “I came over the hill and the car was sideways in the street in my lane, and I couldn’t stop or avoid him”; that plaintiff stated: “A car stopped in front of me, I slid on the pavement.” Defendant, in his deposition, admitted his statement to the policeman, but did not recall it at the trial; plaintiff denied, at the trial, making his. This witness also testified that when he got there (some time after the accident) it was raining, and that plaintiff was lying on the ground; that “according to the report,” the debris was found in the center of the southbound lane which was next to the center line, and within the boundaries of Southampton (extended).

Walter J. Rutkowski, a witness who was driving some distance behind plaintiff, testified: that plaintiff was driving in the northbound lane nearest the center line; that plaintiff’s car hesitated, then started to make a left turn; that the Buick was about 125 feet away at that time, but that he did not know the distance between them when the Ford started across the center line; that the witness pulled over to the right and stopped; that he saw no signal from the Ford, but that it continued to move slowly and that the collision occurred with the Ford traveling about five miles an hour. This witness apparently testified at first (and it is not entirely clear) that the impact occurred at the “dividing line” between the two southbound lanes, “just after he gets across that line”; later he said that the collision was in the curb lane. He also testified that the Buick was traveling at about 30 to 35 miles an hour when he first saw it; that the pavement was dry. In concluding, he stated that in his best judgment the Buick was 100-125 feet north of Southampton as the Ford started its left turn at the south curb line of that street, and that the Buick would then have been 125-150 feet north of the Ford; and, finally, he stated again that the collision occurred just as the Ford started across the dividing line between the two southbound lanes. This witness did not mention the presence of any other car.

It was developed that plaintiff was blind in his right eye. Defendant’s wife, riding with him, testified that she felt an application of the brakes of the Buick, but not so “forceful” as to cause her to turn around (she was talking to the back seat passenger) and look. There was other evidence which is not material to our issues here.

Plaintiff submitted his case solely on humanitarian negligence in failing to stop or swerve; his Instruction No. 3 hypothesized that as the cars were approaching each other, plaintiff turned his Ford to the left “and across the center line * * * when defendant’s Buick automobile was approximately 125 to 150 feet north,” that thereafter plaintiff became and was in a position of imminent peril, and that defendant saw or should have seen plaintiff in such position in time, etc., to have stopped or swerved and thus have avoided the collision. The verdict having been for the defendant, plaintiff’s instruction is con-cededly not an issue on this appeal. We note here, however, that it did not hypothesize the precise point or traffic lane in which the impact occurred.

Plaintiff’s single point on this appeal is the supposed error in giving defendant’s Instruction No. 4, which was as follows: “The Court instructs the jury that if you find and believe from the evidence that defendant, Fred Eckenfels, was driving his Buick automobile in a southwardly direction on Kingston Drive at or near its intersection with Southampton Avenue, and if you further find that defendant at all times drove his automobile in the right-hand or curb lane for southbound traffic and if you find that the collision occurred in the curb lane for southbound traffic then plaintiff is not entitled to recover and your verdict will be in favor of the defendant, Fred Ecken-fels.”

As to that instruction, plaintiff says that the instruction gave the jury a “roving commission,” did not hypothesize sufficient facts to constitute a defense, and that it created a false issue. Basically, the contention is that the instruction ignored the charge that defendant was negligent in failing to stop and thus did not converse the two elements of plaintiff’s disjunctive submission; also, that it did not converse any essential factual element of plaintiff’s submission, for he had not elected to hypothesize the precise lane in which the collision occurred, and was not required to do so. Plaintiff seems to concede that the instruction conversed the submission of a negligent failure to swerve, presumably because, if defendant remained in the curb lane, there was no possible need to swerve on plaintiff’s evidence. This seems somewhat fallacious to us since a collision did occur and, on defendant’s own evidence, it occurred in the curb lane. However, we shall pursue that proposition no further. Defendant has really conversed as though plaintiff had, in Instruction No. 3, hypothesized the place of the collision as at or near the center of the street. Defendant seeks to establish first, that plaintiff did not make a submissible humanitarian case; and, secondly, that if he did, Instruction No. 4 was not erroneous.

We consider first defendant’s contention that plaintiff did not make a submissible humanitarian case. That question must be considered in view of all the evidence, since defendant did not stand on his motion for a directed verdict at the close of plaintiff’s case; and plaintiff is entitled to have the evidence viewed in its light most favorable to him (Justice v. East St. Louis City Lines, Inc., Mo., 375 S.W.2d 150), including the favorable inferences from his own case, as well as those parts of defendant’s case which are favorable to plaintiff. This rule, however, is subject to the oft-stated exception that plaintiff may not have the benefit of evidence which is at war with his own fundamental theory. Woods v. Dalton, Mo.App., 331 S.W.2d 132, 139; Davis v. Quality Oil Co., Mo., 353 S.W.2d 670; Pijut v. St. Louis Public Service Co., Mo., 330 S.W.2d 747. And, generally, a plaintiff may not adopt the testimony of a witness (defendant’s or plaintiff’s) which contradicts his own positive testimony on basic facts which are within his own knowledge. Mollman v. St. Louis Public Service Co., Mo.App., 192 S.W.2d 618. But if the plaintiff’s testimony consists of estimates of speed, distances, time or position, he is not conclusively bound thereby, and may avail himself of other testimony, whether it be that of his own witness or his opponent’s. Williams v. Ricklemann, Mo., 292 S.W.2d 276; Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24; Stout v. St. Louis County Transit Co., Mo.App., 285 S.W.2d 1; McDonough v. St. Louis Public Service Co., Mo., 350 S.W.2d 739; Reifsteck v. Miller, Mo., 369 S.W.2d 229.

We must determine whether the testimony of the defendant and of his witness Rutkowski on estimates of speed and distance was available to plaintiff. The plaintiff testified that his car was stopped with most of its hood across the center line in the inner southbound lane, but with the remainder of the car remaining in the inner northbound lane. Since, concededly, the damage to the car was on the right side back of the windshield, this would place the main force of the impact in the northbound lane but immediately next to the center line and possibly impinging upon it. The police officer placed the debris in the inner southbound lane. The substance of Rutkowski’s testimony was (although he did make the statement that the collision occurred in the southbound curb lane) that the impact actually occurred substantially on the line between the two southbound lanes, and defendant’s own testimony, in at least one place, tended to corroborate that fact. In this conflicting welter of testimony plaintiff elected, for strategic reasons, not to hypothesize the exact lane or point of the collision. Perhaps this is somewhat unusual, but the method has been used before, Welch v. McNeely, Mo., 269 S.W.2d 871, and, since the jury determines when a plaintiff comes into a position of imminent peril, such a submission is permissible if all other requirements of the doctrine are satisfied. Defendant’s contentions possibly embrace the suggestion that plaintiff made no submissible case on the failure to swerve; if so, it is not advanced with any great enthusiasm and, on that subject, we merely note that this was a four-lane road with no other cars nearby (on plaintiff’s testimony) and that there was a clear view from the top of the hill several hundred feet away. On plaintiff’s evidence defendant continued to come at him from a point 150 feet away, within which distance he certainly would have had the ability and the means to swerve either to the right or to the left.

The sufficiency of the proof on the charge of negligence in failing to stop is somewhat more complicated. Plaintiff did not testify to defendant’s speed, merely saying that it was “fast”; that, of course, is a relative term and hardly a statement of a fact. Defendant placed his own speed at between 30 and 35 miles an hour when he saw plaintiff and applied his brakes, and expressed no opinion whatever as to how far away he then was. The final “best judgment” of witness Rutkow-ski was that defendant’s Buick was from 125-150 feet north of plaintiff’s Ford when the latter started across the center line (being 100-125 feet, plus the width of Southampton) ; he also estimated the speed of the Buick at 30-35 miles an hour when he first saw it. Plaintiff testified that when his car stopped, which obviously was after he first saw the Buick (if so) coming across the center line, his Ford was “about one hundred feet” from the Buick, which then continued to come on toward him. We conclude that plaintiff’s statements of speed and distance were estimates at most, and that he is entitled to the benefit of the favorable testimony of defendant and Rutkowski on these subjects, though not on the place of impact. We doubt that plaintiff’s submission on a negligent failure to stop need even be limited by that evidence, for on plaintiff’s evidence defendant had a clear and unobstructed view of the Ford from the top of the hill several hundred feet away. However, on the expert testimony, holding plaintiff to his own factual statement of a “damp” pavement, defendant could have stopped, at the greatest percent of slope and at either 30 or 35 miles an hour, in from 125 feet to 140 feet (an average of 1321/2 feet), and in a somewhat lesser distance in the last 150 feet north of Southampton (which was precisely the location here in question), probably five feet less; thus, we arrive at a net stopping distance of 120-135 feet, or an average (between 30 and 35 miles) of 1271/2 feet. This, we conclude, constituted substantial evidence from which the jury might reasonably have concluded that defendant could have stopped after he saw or should have seen the plaintiff in a position of imminent peril. Defendant does not contend, as we understand, that the evidence was insufficient to show a position of imminent peril; the question was when and where that was reached, which was the jury’s prerogative. We hold that the jury here could reasonably have found the existence of imminent peril from plaintiff’s testimony, in which he stated that he started across and did cross, the center line of the street to avoid defendant’s car which, he said, was then coming and continued to come directly at him. Defendant also suggests, in passing, that if he were guilty of any negligence on plaintiff’s theory, then it was primary negligence, citing Lane v. Wilson, Mo.App., 390 S.W.2d 943, and Davis v. Quality Oil Co., Mo., 353 S.W.2d 670. In Lane, the defendant had swerved and stopped and obviously could not have been guilty of humanitarian negligence thereafter; in Davis, the defendant had swerved into another lane and the evidence showed no possibility of humanitarian negligence thereafter. We conclude that the evidence here justified a humanitarian submission, both on failure to swerve and failure to stop. We recognize, of course, that a case may not be submitted on mere possibilities or conjecture, Lane v. Wilson, Mo.App., 390 S.W.2d 943, but this is not such a case.

We come now to the question of the propriety of Instruction No. 4, which directed a verdict for defendant if he, at all times, remained in the southbound curb lane. Defendant says that this was a converse of an essential element of plaintiff’s case, and that such an instruction is proper. Lucas v. Blanks, Mo., 362 S.W.2d 736; Liebow v. Jones Store Co., Mo., 303 S.W.2d 660; Welch v. McNeely, Mo., 269 S.W.2d 871; Schaefer v. Accardi, Mo., 315 S.W.2d 230. The principle is well recognized. Defendant’s specific argument here seems to be that he hypothesized a state of facts which conversed an essential element of plaintiff’s case, namely, that the plaintiff was in imminent peril in the inner northbound lane; and thus, that if his Buick was and remained elsewhere there could have been no imminent peril and no liability on plaintiff’s theory. The difficulty with this argument is that plaintiff did not so hypothesize his submission, and defendant must converse a basic element of plaintiff’s submission. Compare, Rollins v. Postlewait, Mo., 358 S.W.2d 828, where the exact position of the injured child was hypothesized in plaintiff’s instruction and the converse was held proper. Even so, the essentiality of the element there conversed is questioned in Martin v. Sitz, Mo.App., 381 S.W.2d 609, 614-615. The opinion in the Martin case contains a rather full discussion of what constitutes an “essential element” for the purpose of a converse instruction; and it must be such an element as is prerequisite to a recovery. In Frechin v. Thornton, Mo., 326 S.W.2d 122, defendant conversed an element which plaintiff had elected to submit, though otherwise it might not have been essential, i. e., turning across the center line ahead of plaintiff after stopping or slackening suddenly. See also Rollins v. Postlewait, supra.

Here, a collision did occur, and in some one of three locations; plaintiff did not elect to hypothesize the exact location; the propriety of his instruction is not an issue here. Plaintiff could have been found to be in imminent peril under his own testimony. More specifically, the plaintiff, in his evidence, his theory and his submission, charged defendant with a negligent failure to stop. Instruction No. 4, when considered on defendant’s own theory and under his evidence, completely ignored the charge of a failure to stop; even if the jury found that the impact occurred in or near the curb lane, defendant had no right to so ignore that charge and submission. The failure to swerve and the failure to stop were submitted in the disjunctive, and a verdict may not be directed without a consideration of both; the negligent violation of either duty, if found, was sufficient to support a verdict. What defendant really did here was to converse the precise place of the collision, which was not a submitted element, and therefore not a basic essential of plaintiff’s case. The instruction was misleading and, since the jury apparently believed defendant’s evidence as to the place of collision, it would naturally have been led by the instruction to disregard entirely defendant’s asserted opportunity and ability to stop, whether in the curb lane or otherwise. We hold that the instruction was prejudicially erroneous.

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

All of the Judges concur.