author: PRITCHARD, Commissioner.

text:
    BETHESDA GENERAL HOSPITAL, Respondent, v. The STATE TAX COMMISSION, Appellant.
    No. 50970.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      Victor A. Wallace, Barksdale, Abbott & Wallace, St. Louis, for respondent.
    Thomas F. McGuire, City Counselor, City of St. Louis, James J. Wilson, Asst. City Counselor, St. Louis, Norman H. Andersen, Atty. Gen., W. Arnold Brannock, State Tax Commission, Jefferson City, for appellant.
    George A. Rozier, Forrest P. Carson, Jefferson City, Elliott P. Koenig, Rassieur, Long & Yawitz, St. Louis, for amicus curiae, Hospital Assn, of Metropolitan St. Louis.
   PRITCHARD, Commissioner.

The issue is whether seven residential properties owned by respondent, Bethesda General Hospital (a charitable corporation), and occupied rent free (at the time of placing thereof on the tax rolls, January 1, 1963) by certain hospital personnel, are subject to state, county and local real estate taxes under Article X, § 6, Const.Mo.1945, V.A.M.S., and § 137.100, RSMo 1959, V.A.M.S. The Constitution and said statute, a revenue law, being for construction, we have appellate jurisdiction. Art. V, § 3, Const.Mo.1945, V.A.M.S.; St. Louis Gospel Center v. Prose, Mo., 280 S.W.2d 827, 828 [1].

There are eight properties owned by respondent. Six are located on Rutger Street in St. Louis, Missouri, at the following street addresses: 3633, 3635, 3657, 3665, 3677 and 3681. These six properties were used and occupied as of January 1, 1963, respectively, by the following personnel of respondent: Supervisor of maintenance, salary $400 per month, his wife and two children in the two-story residence; assistant supervisor of maintenance and his family, salary $300 per month, in the two-story residence; assistant supervisor of maintenance and his family, salary $300 per month, in the one-story residence; chief laboratory technician (salary $425 per month) and a registered nurse (who was on leave from the hospital); house physician and family, salary $1,000 per month, in the four-room residence; and house physician and family, salary $1,000 per month, in the four-room residence. A seventh property is located at 3652 Hickory Street, approximately one block north from respondent’s hospital, and was occupied by a house physician and family, salary $1,000 per month, and later in 1963 was occupied by a maintenance man and his family. The eighth single-family property, located at 3647 Rutger Street, was not occupied on January 1, 1963, but was being renovated and its tax-exempt status is not now in issue. In April or May, 1963, it was occupied by one of respondent’s assistant supervisors of maintenance and his family, whose salary is $300 per month.

Respondent rented the subject properties to and including the month of December,' 1962, for about $50 per month. No rentals were charged occupants after January 1, 1963. The reasonable monthly rental of the properties was between $50 and $70 per month, not including utilities.

After appeals to it, the State Tax Commission of Missouri ruled that none of the properties was exempt from taxation. Upon further appeal, the trial court reversed the ruling of the State Tax Commission, and held that the use of all of the residential properties, except that located at 3647 Rutger Street (it being unoccupied on January 1, 1963), was sufficiently connected with the accomplishment of respondent’s charitable purpose so as to be exempt from such taxation.

Heat, light, water, a telephone extension and general maintenance were furnished by respondent to each resident. All of the occupants are full-time employees of respondent, and are on call 24 hours per day. All are essential to the operation of the hospital, and would be housed in the hospital building itself (which is located across Rutger Street from those residences located thereon) if there were physically room in that building for them. The residences are not used for any hospital function such as for the care or treatment of patients, or medical, surgical, dental functions. There are around 400 employees of respondent. There is no question, and it is not otherwise contended, that respondent’s hospital purpose is charitable, and that it operates not for profit. Its pro forma decree of incorporation so states. It is a member of the United Fund; it does a tremendous amount of charity work for patients who cannot pay for care and treatment; and it has continually experienced a net loss in operating income by reason of its charitable work even after application of endowment income.

In its Point I, appellant contends that the trial court erred in finding as a matter of law that respondent’s properties were actually and regularly used exclusively for purposes purely charitable within the meaning of said § 137.100(5) and Art. X, § 6, Const.Mo.1945, because the subject real properties were used regularly and exclusively for residential purposes only.

Said Art. X, § 6, Const.Mo.1945, provides in part that “all property, real and personal, not held for private or corporate profit and used exclusively for religious worship, for schools and colleges, for purposes purely charitable, * * * may be exempted from taxation by general law. * * Implementing this constitutional provision is said § 137.100(5), which provides as exempt from taxation for state, county or local purposes: “(5) All property, real and personal actually and regularly used excusively for religious worship, for schools and colleges, or for purposes purely charitable and not held for private or corporate profit, except that the exemption herein granted does not include real property not actually used or occupied for the purpose of the organization but held or used as investment even though the income or rentals received therefrom is used wholly for religious, educational or charitable purposes. As amended Laws 1959, H.B. No. 108, § 1.”

The issue here is concerned with the words of the Constitution and statute, supra, that real property shall be exempt from taxation where it is not held for private or corporate profit, and the same is used exclusively for purposes purely charitable. The rules applicable to cases such as this are that exemption statutes are strictly but reasonably (so as not to curtail the intended scope of the exemption) construed; that the charitable use exemption depends upon the use made of the property and not solely upon the stated purposes of an organization; that each tax exemption case is “peculiarly one which must be decided upon its own facts”; that taxation is the rule; exemption is the exception; and that claims for exemption are not favored in the law. Midwest Bible and Missionary Institute v. Sestric, 364 Mo. 167, 260 S.W.2d 25. In the case of Bader Realty & Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489, 492 [2], the court said, “The courts formerly held a somewhat limited view and rather narrowly interpreted the words ‘charity’ and ‘charitable purposes’. But the present day concept of ‘purposes purely charitable’ is broader than mere relief of the destitute or the giving of alms. As now viewed it comprehends activities not self-supporting ‘which are intended to improve the physical, mental and moral condition of the recipients and make it less likely that they will become burdens on society and more likely that they will become useful citizens.’ ” In the Bader case it was held that property owned by the St. Louis Housing Authority, upon which after slum clearance low rent housing was erected, was tax exempt, it being a charitable purpose.

Other authority states that the reason for state tax exemption provisions is that they are given in return for the performance of functions which benefit the public; 84 C.J.S. Taxation § 281, p. 533; that the exemption in favor of the charitable institutions is based upon the ground that a benefit is conferred upon the public by them, with consequent relief, to some extent, of the burden imposed upon the state to care for and advance the interests of its citizens. 34 A.L.R. 635. See also 51 Am.Jur. Taxation § 600, p. 583.

Aside, however, from the basic rules of construction and reasons for tax exemptions of charitable organizations, we have the narrow question of whether the use by personnel of respondent exclusively as family residences (and not directly for any hospital function as the facts show) destroys any exemption from taxation. The case of State ex rel. Spillers v. Johnston, 214 Mo. 656, 113 S.W. 1083, 21 L.R.A..N.S., 171), had in it the sole question of whether a use of part of a building by the proprietor, with no other avocation, of Kemper Military School at Boonville, Missouri, as a family residence rendered it taxable. It was there contended, as here, that such use destroyed the exclusive character of the school’s educational exemption under the statute. The court denied the contention and said, loc. cit. 113 S.W. 1085: “The phrase ‘exclusively used’ has reference to the primary and inherent use as over against a mere secondary and incidental use. (Citing case) If the incidental use (in this instance residing in the building) does not interrupt the exclusive occupation of the building for school purposes, but dovetails into or rounds out those purposes, then there could fairly be said to be left an exclusive use in the school on which the law lays hold.”

We have found no case in this state precisely on the point of tax exemption of an owner charitable corporation providing separate but nearby residential facilities (used only as residences) for its essential employees. There are, however, cases from other jurisdictions which are of aid and which hold that such exemption exists. In point is respondent’s cited case of Cedars of Lebanon Hospital v. Los Angeles County, 35 Cal.2d 729, 221 P.2d 31, 15 A.L.R.2d 1045. There, a question presented was whether the use of property by plaintiff hospitals for a nurses’ training school and to provide housing for hospital interns, resident doctors, student nurses, and certain other alleged essential employees required to be readily available in their effective operation constituted a use exclusively for hospital purposes and so brought the property within the scope of the welfare tax exemption (Cal.Rev. & Tax.Code, § 214). The court held that these enumerated uses came within the exemption, and with respect to use of the property to provide housing facilities for interns, resident doctors, superintendents, and other members of the hospital staff, had this to say, loc. cit. 221 P.2d 38 [12]: “[T]hat the administration of the affairs of the institution requires that certain personnel and employees be located on or near its grounds to the end that its operation may be efficiently conducted and supervised, and that emergency cases may be effectively handled as they arise. Since it is commonly expected by the public that admittance to a hospital may be had at any hour of the day or night, such twenty-four hour service necessarily involves the presence at all times of adequate help and trained personnel. * * * As the welfare exemption law has been heretofore discussed ‘property used exclusively for * * * hospital * * * purposes’ would comprehend not only the buildings and grounds actually used for housing the patients in their treatment and care, but also such adjacent or nearby buildings used for housing such persons as may be essential for the efficient operation of the hospital.” In the case of St. Luke’s Hospital v. Boyland, 12 N.Y.2d 135, 237 N.Y.S.2d 308, 312, 187 N.E.2d 769, 772 [5], it was held, and cases were cited so holding, that “The test of any tax exemption is whether apartments in them (the subject apartment houses) occupied by hospital personnel and their immediate families are devoted to a use which ‘is reasonably incident’ to the major purpose of the hospital. (Citing cases) We think it is clear that they were. In Matter of De Mott v. Notey, 3 N.Y.2d 116, 164 N.Y.S.2d 398, 143 N.E.2d 804, use of dwellings by hospital personnel, in a case, like this, of a unified facility, was held to be accessory to use for a hospital.” (Parenthetical statement added.) See also Township of Princeton, County of Mercer v. Tenacre Foundation, 69 N.J.Super. 559, 174 A.2d 601, where a residence provided the director of a sanatorium and nursing home for the care and treatment of the sick was held tax exempt as reasonably necessary for the efficient functioning of the institution, and was considered “actually and exclusively” used in the work of the Foundation within the meaning of the statute; State v. Fairview Hospital Association, 262 Minn. 184, 114 N.W.2d 568; Annotations, 34 A.L.R. 674; 108 A.L.R. 295; 15 A.L.R.2d 1064.

Appellant’s cited cases are distinguishable. St. Louis Gospel Center v. Prose, Mo., 280 S.W.2d 827, disallowed tax exemption because a tenant, not a member of plaintiff church and not connected with its center, paid rent for rooms and interrupted the exclusive use of the property for religious, charitable and educational purposes. State ex rel. Spillers v. Johnston, supra, allowed the exemption, and except for general rules stated, is not helpful to appellant. Evangelical Lutheran Synod, etc. v. Hoehn, 355 Mo. 257, 196 S.W.2d 134, involved the tax exemption (disallowed) of a competitive commercial printing and publishing house business conducted on the premises. Y.M.C.A., etc. v. Sestric, 362 Mo. 551, 242 S.W.2d 497, 506, allowed the tax exemption for premises upon which dormitories, meals service, barber and laundry service, sale of incidental, etc., for the purpose of providing charity (without profit) of a practical sort, for the welfare of young men and boys, because “the provision and maintenance thereof dovetails into and rounds out the charitable purposes of plaintiff.” In People ex rel. Kelly v. Avery Coonley School, 12 Ill. 2d 113, 145 N.E.2d 80, a tax exemption was disallowed upon the ground that the buildings were occupied by a headmistress and by unmarried teachers for residential use which was primary. In Gifford Memorial Hospital v. Town of Randolph et al., 119 Vt. 66, 118 A.2d 480, occupancy by physicians for their public offices was held to be a primary use of the building, and the same was but an incidental benefit to the hospital, hence the exemption was disallowed. In Doctors Hospital v. Board of Tax Appeals, 173 Ohio St. 283, 181 N.E.2d 702, residence quarters for interns furnished by a charitable hospital were held not tax exempt because the benefit to the public of having an intern-resident program was too remote, as was held, to remove from the tax lists the facilities used by those participating in the program. In the Doctors case the court distinguished Aultman Hospital Ass’n v. Evatt, Tax Com’r, 140 Ohio St. 114, 42 N.E. 2d 646, which exempted from taxation the quarters provided for (necessary) student nurses by a hospital which operated a school of nursing.

In the case at bar the evidence is undisputed that the doctors, the nurse, and the maintenance personnel who occupied the seven residential properties were on call 24 hours a day. They were key personnel, necessary to the efficient operation of the hospital, for the continuance of which it was likewise necessary that they be located near (across the street and within a block) its grounds. The “exclusive use” of the property was and is reasonably connected to respondent’s charitable purpose of operating the hospital. We rule that the use by these employees of the properties as residences provided them by respondent is not the dominant purpose, but is merely incidental to respondent’s said main charitable purpose.

Appellant’s second point is that the trial court, in reversing the State Tax Commission, erred because it improperly and unlawfully substituted its discretion for that of the State Tax Commission, the decision of which being supported by competent and substantial evidence upon the whole record. The contention is without merit. The facts are conceded here — i. e., that respondent is a charitable corporation, and the residential uses to which the subject property is being put by respondent for its essential employees. There was thus no question of weighing the evidence, and hence no place for discretion to be exercised by the State Tax Commission. Upon these undisputed facts the question is one of law — Were the properties of respondent exempt from taxation ? The trial court ruled correctly, as we have held, and within the provisions of Civil Rule 100.07(c), V.A.M.R. Point II is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Charles Grant SMITH, Appellant, and Vern Leon Reynolds and Helen Reynolds, Intervenors-Appellants, v. Margaret PREIS, Executrix of the Estate of Mrs. Betty Moore, Deceased, Respondent.
    No. 51256.
    Supreme Court of Missouri, Division No. 2.
    Dec. 13, 1965.

      Daniel, Clampett, Ellis, Rittershouse & Dalton, Ransom A. Ellis, Jr., Donald W. Jones, Springfield, for plaintiff-appellant.
    Miller, Fairman, Sanford, Carr & Low-ther, William P. Sanford, F. William Joyner, Springfield, for intervenors-appellants.
    Robert F. Middleton, Russell, Brown & Middleton, Nevada, for defendant respondent.
   STOCKARD, Commissioner.

On November 30,1963, Mrs. Betty Moore sustained personal injuries when an automobile operated by Charles Grant Smith, and in which she was a passenger, collided with an automobile owned by Vern Leon Reynolds and Helen Reynolds. On December 31, 1963, Mrs. Moore filed a suit in the Circuit Court of Cedar County against Smith and each of the Reynolds in which she sought damages for personal injuries. On February 4, 1964, Mrs. Moore died. Margaret Preis, executrix of the estate of Mrs. Betty Moore, deceased, was substituted as party plaintiff. She subsequently filed her first amended petition seeking damages in the amount of $50,000, and she alleged therein that “the injuries inflicted upon [Mrs. Betty Moore] on November 30, 1963, * * * did not result in [her] death * *

On April 17, 1964, Margaret Preis, designating herself as “executrix of estate of Mrs. Betty Moore,” filed a separate suit in the Circuit Court of Cedar County against Smith and each of the Reynolds in which she sought damages in the amount of $25,000 for the wrongful death of Mrs. Betty Moore, and alleged therein that “plaintiff is informed and believes that such death occurred by reason of the injuries received in the aforementioned collision occurring November 30, 1963.”

Without seeking the relief authorized by Civil Rules 66.01(b) and 66.02, V.A.M.R., at least insofar as shown by the record, Charles Grant Smith.filed the pending suit in the nature of interpleader against Margaret Preis, executrix of the estate of Mrs. Moore, and Vern Leon Reynolds and Helen Reynolds were permitted to intervene as plaintiffs. They alleged that they are faced with two inconsistent suits; the suit for damages in the amount of $50,000 for personal injuries on the theory that the injuries did not result in the death of Mrs. Moore, and the suit for $25,000 for wrongful death on the theory that the same injuries did result in the death of Mrs. Moore. The prayer was that the plaintiff in the revived personal injury action and the plaintiff in the wrongful death action be required to interplead and adjudicate the single issue as to whether the injuries sustained by Mrs. Moore did or did not result in her death; that pending the determination of that issue the prosecution of both cases be enjoined; and that if it be determined that the injuries did result in Mrs. Moore’s death that the action for personal injuries be dismissed with prejudice, and if it be determined that the injuries did not result in the death of Mrs. Moore that the aetion for wrongful death be dismissed with prejudice.

Margaret Preis, as executrix, filed a motion to dismiss the petition in the nature of interpleader on the ground that it failed to state a claim upon which relief could be granted, which motion was sustained by the trial court, and plaintiffs in the inter-pleader action have appealed. The relief sought by appellants is the dismissal of either the action for $50,000 for personal injuries or the action for $25,000 for wrongful death. The value of the relief sought by appellants is at least $25,000, and this court has appellate jurisdiction. Plaza Express Co., Inc. v. Galloway, 365 Mo. 166, 280 S.W.2d 17.

Section 537.020 (all statutory references are to RSMo 1959, V.A.M.S.) provides in part that “Causes of action for personal injuries, other than those resulting in death, * * * shall survive to the personal representative of such injured party, * * (Italics added.) Margaret Preis, as executrix of the estate of Mrs. Moore, is that personal representative. State ex rel. McCubbin v. Ginn, Mo., 347 S.W.2d 119, 125.

Section 537.080 provides in part that “Whenever the death of a person shall he caused by a wrongful act, neglect or default of another * * * the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, * * It is further provided that such damages may be sued for and recovered by certain persons but if there are none of those specified, “then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent.” (Italics added.) Margaret Preis, in the capacity of executrix, is the person designated to bring the suit for wrongful death.

At common law an action for personal injuries did not survive the death of an injured party, Jordan v. St. Joseph Ry., Light, Heat & Power Co., 335 Mo. 319, 73 S.W.2d 205, 211, and an action for wrongful death was not cognizable at common law. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 895. Therefore, only by virtue of Section 537.020 may an action for personal injuries survive to the personal representative of the deceased, and that action survives only if the injury did not result in death. Plaza Express Company v. Galloway, supra. Also, it is solely by virtue of the wrongful death statutes above referred to that any claim or cause of action accrues to the person named in Section 537.080. Jordan v. St. Joseph Ry., Light, Heat & Power Co., supra. It necessarily follows that at the instant of the death of Mrs. Moore, a claim for damages for the personal injuries she received in the November 30, 1963 collision survived to her personal representative, in this case her executrix, if, but only if, the injuries she received as the result of the collision did not result in Mrs. Moore’s death. It also necessarily follows that a claim or cause of action for the wrongful death of Mrs. Moore accrued to the executrix of her estate if, but only if, those same injuries did result in Mrs. Moore’s death. There was at this death only one claim in existence; both claims could not and did not exist. Plaza Express Company v. Galloway, supra. Which of the two claims did exist depends upon a determination of the fact issue of whether the injuries Mrs. Moore received did or did not cause her death.

Interpleader in Missouri is now governed by Civil Rule 52.07, V.A.M.R., (in substance the same as Section 507.060) which has entirely abolished certain technical requirements and has broadened the scope of common law interpleader, and in its parts material to this proceeding is as follows: “Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.” The phrase “double or multiple liability” obviously means exposed to double or multiple recovery for a single liability. Plaza Express Company v. Galloway, supra. The broadened effect of Civil Rule 52.07, is expressly set forth in the Plaza Express Company case, where it is said that “there are only two vital facts which must appear from the averments in plaintiffs’ statement of their claim. These are that persons have claims against plaintiffs, and that those claims are of such nature that plaintiffs may be exposed to ‘double liability.’ ”

In the pending case we are concerned with whether appellant’s petition stated a claim for the relief of interpleader under Rule 52.07. Respondent, as the personal representative referred to in Section 537.-020, in whose name the action for personal injuries has been revived, has presented a claim against appellants for $50,000. Respondent, as the person who is executrix of the estate of Mrs. Moore and who in such status is the person designated by Section 537.080 to be the nominal plaintiff in an action for wrongful death, has presented a claim in the amount of $25,000 against appellants. In the first capacity respondent, in effect, stands in place of the deceased, and represents her estate. The damages recoverable in the revived personal injury action become assets of the estate of the testator available for payment of debts, for distribution according to the will, and for all uses to which general assets may be applied. In the second capacity she acts as trustee for the benefit of those who take under the “laws of descent.” Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504; 16 Am.Jur. Death § 266. Such amount that is recovered, if any, does not go into the estate but is distributed directly to those entitled thereto under the laws of descent. In fact, in the two capacities Margaret Preis represents conflicting and inconsistent interests. Plaza Express Company v. Galloway, supra, 280 S.W.2d at p. 23; Wallace v. Bounds, Mo., 369 S.W.2d 138. In these two capacities she constitutes “persons having claims” within the meaning of that phrase as used in Civil Rule 52.07.

The other vital fact necessary to state a claim under Civil Rule 52.07 is that appellants may be, in fact, subject to two recoveries for a single liability, for which single liability they are legally subject to only one recovery.

Appellants assert that they are faced with double recovery on a single liability because respondent is acting in two separate capacities, in neither of which is she in privity with herself acting in the other capacity. Respondent admits that she has made two claims, only one of which can exist, and she admits that she is acting in two separate capacities. She asserts, however, that “there is sufficient identity of interest so that she will be bound by the first determination of the fact” as to whether the injuries received on November 30, 1963, did or did not cause her death. She later asserts that if she litigates “either cause of action to a jury verdict in her favor, the issue of the cause of death will inherently be decided.” The implication from this latter assertion, somewhat inconsistent with the former, is that if she litigates either cause of action to a verdict which is not in her favor, she may then litigate the other.

A former adjudication on the same cause of action between the same parties is conclusive in a second proceeding as to every issue of fact which was or might have been litigated in the first under what is called res judicata or estoppel by judgment. Abeles v. Wurdack, Mo., 285 S.W.2d 544, 546. The two claims presented in this case are not based on the same cause of action, Harris v. Goggins, Mo., 374 S.W.2d 6; Gibson v. Solomon, 136 Ohio St. 101, 23 N.E.2d 996, 125 A.L.R. 903, and the doctrine of res judicata or estoppel by judgment, strictly speaking, does not apply. However, a judgment between the same parties on a different cause of action is binding as to the facts actually decided, and necessarily determined in rendering the judgment under what is called estoppel by verdict. State ex rel. Gott v. Fidelity & Deposit Co. of Baltimore, Md., 317 Mo. 1078, 298 S.W. 83; Abeles v. Wurdack, supra. The principal issue in this case is whether in the two suits there is an identity of parties plaintiff. In each case the named individual is Margaret Preis, and in each case she is acting as the executrix of the estate of Mrs. Moore. “However, it is said that identity of parties is not a mere matter of form, but of substance; parties nominally the same may be, in legal effect, different; and parties nominally different may be, in legal effect, the same.” 30A Am.Jur. Judgments § 397; Chicago, R. I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, 53 A.L.R. 1265; Gibson v. Solomon, 136 Ohio St. 101, 23 N.E.2d 996, 999; 50 C.J.S. Judgments § 763.

As a general rule, for res judicata or estoppel by verdict to apply, even though there is an identity of persons, they must be parties to both actions in the same capacity or quality. 30A Am.Jur. Judgments § 398; In re Thomasson’s Estate, 355 Mo. 274, 196 S.W.2d 155, 170 A.L.R. 1170; National Bondholders Corp. v. Seaboard Citizens Nat. Bank, 4 Cir., 110 F.2d 138; Butterick Co., Inc. v. Molen, 198 Okl. 92, 175 P.2d 311; McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 107 N.E. 439; Gibson v. Solomon, 136 Ohio St. 101, 23 N.E.2d 996. There is no question but that in this case Margaret Preis, as executrix, in the suit for personal injuries is acting in a capacity different from her capacity as the nominal plaintiff designated in Section 537.080 where she acts as trustee for those entitled to the proceeds of the wrongful death action. In fact, as previously noted, her interests in each capacity are adverse and inconsistent. In a case comparable on the facts, McCarthy v. William H. Wood Lumber Co., supra, the Supreme Court of Massachusetts said this: “The plaintiff [administrator] in the former case [for personal injuries revived by the administrator] in the strict sense represented the deceased and stood in her shoes. In the present case [wrongful death brought by the same person as administrator] he does not represent her or her estate. The cause of action does not come to him as a survival from his intestate, but as an obligation springing into existence after her death, which becomes in a sense a trust in his hands to be executed wholly for the benefit of the next of kin, and not at all for the benefit of her estate.” Subsequently it was held that “there is no privity between the plaintiff suing in his two different personalities, one for the benefit of those interested in the estate and the other for the benefit of the next of kin,” and that the “result is that the doctrine of res judicata [strictly speaking, estoppel by verdict] does not apply to the facts disclosed on this record.” See also the somewhat comparable factual situations in Gibson v. Solomon, supra, and Coon v. Atlantic Coast Line R. Co., 125 Fla. 240, 171 So. 207.

Respondent relies on In re Thomasson’s Estate, supra; In re Franz’ Estate, Mo., 372 S.W.2d 885; Rossi v. Davis, 345 Mo. 362, 133 S.W.2d 363, 125 A.L.R. 1111; and In re Flynn’s Estate, 232 Mo.App. 297, 95 S.W.2d 1208. These cases represent what is sometimes called an exception to the above rule, but which actually is not an exception. The facts of each case do not bring it within the rule. Where a party in an individual or representative capacity is asserting or protecting the same rights or interests he later seeks to assert or protect in a different representative capacity, he is in effect the same party, or at least in one capacity he is in privity with his other capacity. This distinction is discussed at length, and the rule is set forth concisely and in detail in Vaughn, Adm’r. v. Louisville & N. R. Co., 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060; and in Chicago, R. I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, 53 A.L.R. 1265. In her brief, respondent sets forth the issue this way: “In the previous action, did the party have substantially the same interest and represent substantially the same legal right? If the answer is yes, estoppel by judgment will be applied.” We add, that if not, estoppel by judgment or by verdict will not be applied. We have demonstrated in this case, that not only do the parties represented by Margaret Preis in her two capacities not have the same interest, their interests are in conflict, and the legal rights she represents are different, and in fact are adverse to each other.

Respondent also asserts that Gibson v. Solomon, supra, and McCarthy v. William H. Wood Lumber Co., supra, should be distinguished (and this contention would apply equally to Coon v. Atlantic Coast Line R. Co., supra), on the ground that in the states from which these cases arose an action for injuries resulting in death and an action for wrongful death are not mutually exclusive of each other. We fail to see why this distinction constitutes a difference. The issue in those cases, as in this one, was whether the doctrine of estoppel by verdict applied when the plaintiff in the two actions was the same person acting in different capacities and not representing the same interests.

We know of no rule under the theory of estoppel by verdict whereby those who are the beneficiaries under the wrongful death act, when their interests are not identical to those who benefit from a testator’s estate, are or should be bound by the action of a person acting as executor of the estate when that action is contrary and adverse to the interest he is charged by law to represent in his separate capacity as statutory trustee for the benefit of those who take under the laws of descent, and vice versa.

We conclude that the petition for inter-pleader does present facts authorizing relief under Civil Rule 52.07, and the trial court erred in dismissing it.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Michael MILLER, a Minor, by Milton Miller, Jr., His Natural Parent and Next Friend, Respondent, v. Marvin GREIS and Chester Arthur Allen, Appellants.
    No. 51178.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.
    Spencer, Hines & Petri, Columbia, for respondent.
    J. Turner Jones, Columbia, for appellants, Welliver, Porter & Cleaveland, Columbia, of counsel.
   HOUSER, Commissioner.

This is an action for damages for personal injuries, loss of earnings, medical expenses, etc., brought by 17-year-old Michael Miller, pro ami, arising out of an intersec-tional collision between an Oldsmobile sedan Miller was driving and a dump truck owned by defendant Greis and driven by defendant Allen. A trial jury returned a verdict for plaintiff and against both defendants for $16,500. From the judgment entered upon the verdict both defendants have appealed.

Defendants’ first point is that the court erred in not directing a verdict for defendants at the close of the evidence because the evidence demonstrates that plaintiff was guilty of contributory negligence as a matter of law for (1) failure to maintain a lookout and (2) failure to yield the right of way in making a left turn into the path of the approaching dump truck which it is alleged was plainly visible and so close to the intersection as to constitute an immediate hazard.

The collision occurred at 9 a. m. on a clear, sunshiny August day in the northwest quadrant of the intersection of Providence Road, a north-south street, and Old Highway 40 (an east-west thoroughfare), in Columbia. Greis’ southbound dump truck collided with the Oldsmobile after the Oldsmobile, which had been proceeding north, turned left at the intersection to go west.

Providence Road north of the intersection is a 24-foot, 2-lane pavement; south of the intersection it broadens into a 50-foot, 4-lane trafficway. As the traveler comes south on Providence Road he experiences a slight rise for about 500 feet as he approaches Old Highway 40, then at a point 75 or 100 feet south of Old Highway 40 there is a “very good slope,” “a steep grade,” something like a 10% grade for two blocks or 300 feet as one goes on south. A southbound driver can see the intersection a half mile away. A northbound driver at the intersection can see the pavement of Providence Road for a half mile to the north. Old Highway 40 is a 24-foot, 2-lane pavement. A red-green-amher electric light controls traffic at the intersection. It hangs over the center of the intersection.

From the evidence most favorable to the prevailing party the jury could have found the following facts: Miller, driving the Oldsmobile, approached the intersection from the south, intending to turn to his left or west. He drove on the inside lane of the two northbound lanes of Providence Road. As Miller approached the intersection the green light turned amber and then red. Miller stopped in the inside lane; turned on the blinking left-hand turn signal light on the Oldsmobile about the same time he stopped; saw cars going east and west on Old Highway 40; saw an automobile coming south toward the intersection followed by the dump truck in question, which was loaded with rock, traveling at a speed not estimated by Miller (he had no judgment on that matter) but which according to other evidence was normal, “not excessive,” 15 or 20 m. p. h. When Miller first saw the truck it was 300 feet north of the intersection. Miller may have noticed the truck in the meantime but had no specific recollection of the truck after he first saw it until just before the collision. He did note that it was “some distance away” and that he (Miller) “had time to turn.” Miller did not move the Oldsmobile until the light turned green, at which time Miller moved the Oldsmobile out into the intersection. Some cars were still coming toward the intersection from the west. Miller waited awhile in the intersection to make sure this cross traffic was going to stop and to see what the southbound car on Providence Road was going to do. The eastbound traffic stopped, and the left-turn signal on the southbound car was turned on. As soon as Miller saw that the southbound car was going to turn left Miller proceeded to make his left turn. The truck was 2 or 3 car lengths (28 to 42 feet) north of the southbound automobile when Miller turned left. As Miller “almost got headed west” Miller saw the truck, which was then only a short distance away — less than 10 feet — “practically on top” of Miller. The collision occurred “practically at the same time” Miller saw the truck the second time.

Allen, driving the 1959 GMC dump truck, which was approaching the intersection from the north, came up the slight incline and first observed the Oldsmobile stopped in the inside northbound lane in a position to make a left-hand turn when Allen’s truck was “a little ways” north of the intersection. Allen’s truck then was “practically on Old 40.” Although there was a southbound automobile “a couple of car lengths or so” in front of the truck, after the light had turned green, Allen failed to see this southbound automobile. Allen was watching the traffic light. As he approached the intersection he was “holding back, laying back a little bit on the grade until the light turned green.” When the light turned green Allen accelerated his speed to “make” the steep grade on the other side of Old Highway 40. The traffic light was green when he entered the intersection. The Oldsmobile began to move out to make a left turn and “came around with a swing.” As the truck approached the intersection it was either half on and half off the concrete pavement or maybe just the width of the tires off the pavement, and was creating dust on the shoulder. Allen told a police officer after the collision that he was “almost certain” that he could not have stopped and that he tried to miss the Oldsmobile by using his steering wheel. Allen testified that he gripped his steering wheel to get a firm hold to try to miss the car and then cut to the right in an attempt to avoid a collision. The truck was in good mechanical condition and the truck brakes worked properly. Allen testified that at the speed the truck was traveling he could stop the dump truck in 10 to IS feet on dry pavement. Although Allen testified that he applied the brakes full force and that the truck left skid marks 10 or 15 feet long, he testified in his deposition that no skid marks were made. A police officer who appeared at the scene of the collision testified that the truck did not leave any skid marks. Allen testified that he did not steer to his left because that would have caused the truck to “practically hit [the Oldsmobile] head on” and did not sound a horn because he wanted to get a firm grip on the steering wheel and in touching the horn in the center of the wheel he might have lost control of the truck completely.

The truck was headed southwest, more west than south, at the time of the collision. Substantially all of the Oldsmobile had reached the north half of the Old Highway 40 pavement at the time of impact. When the collision occurred the Oldsmobile, traveling 10-15 m. p. h., was 28 to 42 feet west of the center line of Providence Road and a foot or two north of the center line of Old Highway 40, with perhaps a few inches of the Oldsmobile “still sticking over the line.” The debris from the impact was deposited near the center line of Old Highway 40. The front end of the truck collided with the right front side of the Oldsmobile. The impact pushed the Oldsmobile in a sideways or southwest direction from 10 to 20 feet. It came to a stop 5 feet from the south curb of Old Highway 40, headed northwest, perhaps not quite a car length (14 feet) west of the west curb line (extended) of Providence Road.

Was Miller contributorily negligent as a matter of law in not maintaining a lookout and in failing to yield the right of way to the approaching truck and in making a left turn into its path ? We have examined the case cited and others in which drivers in intersectional collisions have been adjudged guilty of contributory negligence as a matter of law. We recognize the rules relied upon by defendants, namely, that it is the duty of one in Miller’s seat to have maintained a continuous lookout for and to have made a reasonably careful observation of approaching traffic to have seen what looking would have revealed, and to have exercised due diligence in estimating the distance away and speed of an approaching vehicle ; that a driver in such position cannot relax his continuous lookout duty by assuming that the driver of the other vehicle would not be present on the highway under circumstances that would be in violation of the rules of the road, and that the failure on the part of a plaintiff, where a lookout duty exists, to see what is plainly visible when he looks constitutes contributory negligence as a matter of law. Under given circumstances a mere glance may be sufficient to reveal the presence of a vehicle and the knowledge thereby imparted may enable one to avoid a collision. A consideration of the foregoing rules, however, does not necessarily require a finding of contributory negligence as a matter of law in this case. A reasonable argument can be made that Miller, having seen the truck when the truck was 300 feet north of the intersection and having knowledge of its approach, moved the Oldsmobile into its path at a time when the truck was so close to the intersection as to constitute an immediate hazard “without ever bothering to again ascertain the progress, position, and movement of the defendant’s truck,” thereby causing an otherwise avoidable collision. A jury, however, could reasonably make a contrary finding on the evidence in this case.

Miller, sitting in the Oldsmobile which he had stopped next to the center line of Providence Road, saw the southbound truck 300 feet north of the intersection, following another southbound vehicle. If we charge Miller with a continuous lookout duty from that moment forward it could reasonably be found that Miller could have observed the truck traveling toward the intersection at the speed of 15 to 20 m. p. h., “holding back” on its speed; that thereupon Miller drove out into the intersection and stopped; that Miller, intending to turn left, was entitled to act upon appearances, Carpenter v. Kessner, Mo.App., 330 S.W.2d 270, 274; that it reasonably appeared to him that the truck would stay in its proper lane and proceed normally at a reasonable speed behind the other southbound vehicle until the truck reached the intersection; that Miller was not bound to anticipate that the truck would accelerate its speed and change its course as it came nearer, and drive out of the southbound lane onto the shoulder and run into Miller’s vehicle at a point two or three Car lengths west of the center line of Providence Road; that when the leading southbound vehicle signaled a left turn Miller started his left turn; that the truck at that time was north of the Oldsmobile a distance of 42 feet plus the width of the north half of Old Highway 40, plus the length of the other southbound vehicle, and that considering the truck’s speed at that time, the nearness of the Oldsmobile to the center line of Providence Road, and the short distance the Oldsmobile had to travel to clear the expected path of the oncoming southbound truck, there was time and space for Miller to execute his left turn without apparent danger of collision. There was evidence from which the jury could have found that there would have been no collision, if Allen had been looking at something other than the traffic light, had stayed in his lane, and had not sped up to “make” the steep grade ahead. Miller was not bound to wait for both southbound vehicles to pass before turning. He was not duty bound in all events to wait for the southbound truck to pass by on his left side before turning. Whether he could safely execute the left turn depended upon the speed of the truck and its distance away. In making his calculations Miller did not have to anticipate that due to some unexpected acceleration of the truck the paths of the vehicles would cross. Burton v. Moulder, Mo.Sup., 245 S.W.2d 844, 846 [5], Normal oncoming traffic (and speed) was all that he was obliged to anticipate. Myers v. Searcy, Mo.Sup., 356 S.W.2d 59, 62. The question of contributory negligence of Miller was properly left to the jury to determine.

The court gave Instruction No. 1, the relevant portions of which follow:

“ * * * if you find and believe from the evidence that on August 14, 1962, at about 9:00 a. m., the plaintiff Michael Miler was operating a 1957 Oldsmobile automobile in a northerly direction on Providence Road, Boone County, Missouri, and had turned said vehicle in a westerly direction at the intersection of Providence Road and U. S. Business Loop 70, Columbia, Missouri, and if you further find and believe from the evidence that at the time and place mentioned in the evidence the defendant Chester Arthur Allen was driving a 1959 GMC truck in a southerly direction along said Providence Road approaching and entering the intersection with U. S. Business Loop 70; and if you further find and believe from the evidence that as said defendant Allen entered said intersection he failed to maintain an adequate and careful lookout ahead of said truck, and that the defendant was operating said truck at a high and dangerous rate of speed’under the circumstances then and there existing, and if you find that defendant failed to slow or slacken the speed of said truck or give warning of his approach, to enable plaintiff to remove himself from the path of said truck, and that in so doing defendant Allen failed to exercise the highest degree of care and was guilty of negligence, * *

Defendants’ second point challenges the sufficiency of the evidence to support the giving of Instruction No. 1. We will not elaborate the positions of the parties or our reasons for concluding that the evidence was sufficient, since the judgment must be reversed for the error in the instruction pointed out by defendants in their third point.

Instruction No. 1 erroneously authorizes a verdict for plaintiff based upon defendants’ failure to slow or slacken the speed of the truck or to warn of its approach, without requiring a finding of the basic fact that there was apparent danger of collision. The instruction hypothesized a factual situation in which plaintiff’s northbound Oldsmobile turned in a westerly direction at an intersection; defendants’ southbound truck was approaching and ■entering the intersection, and the Oldsmobile was in the path of the truck. The instruction assumed the existence of a ■duty on the part of the truck driver under this hypothesis to slow or slacken the speed of the truck or give warning of its approach, to enable the driver of the Oldsmobile to remove himself from the path of the truck. No such duty exists upon this hare framework of facts; no duty to take the precautions hypothesized unless there ■was apparent danger of a collision. The law does not impose upon the driver of a vehicle approaching and entering an intersection in which a vehicle is in its path the duty to slow down or issue a warning unless the use of the highest degree of care upon his part would lead him to believe that otherwise a collision would occur. He is not obliged to slacken speed or warn merely because he sees another automobile in the street ahead of him. There must be apparent danger of collision before he is required to act, and time thereafter to effectively take preventive action in avoidance. This fundamental factual basis for the existence of the duty was wholly omitted from the required findings. A finding that defendant Allen knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have slackened his speed and sounded a warning but failed to do so should have been incorporated in the verdict-directing instruction. M.A.I. No. 17.04.

This rule stems from Stakelback v. Neff, Mo.App., 13 S.W.2d 575, 577, which has been followed consistently and recognized by this court en banc as late as April 12, 1965. Mullen v. St. Louis Public Service Co., Mo.Sup., 389 S.W.2d 838. While there are cases approving instructions omitting a specific finding of apparent danger, upon examination it will be discovered that in each of them an inherently dangerous situation was sufficiently hypothesized to raise a duty to act. Such differentiating circumstances do not exist in the present situation.

Since there must be a new trial we need not state and elaborate on the point that the court erred in giving Instruction No. 3 on the measure of damages. On a new trial, however, the plaintiff would be well advised to give the matter serious consideration before submitting an instruction authorizing the jury to award damages for permanent injuries, if the evidence of damage is substantially the same, or to award this minor plaintiff damages for loss of earnings and medical expenses.

A discussion of the request for a remit-titur is inappropriate in view of the necessity for a new trial.

Judgment reversed and cause remanded for a new trial.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Payne v. Smith, Mo.Sup., 322 S.W.2d 764; Davis v. Quality Oil Co., Mo.Sup., 353 S.W.2d 670.

      . Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78.

      . Burton v. Moulder, Mo.Sup., 245 S.W.2d 844.

      . Myers v. Searcy, Mo.Sup., 356 S.W.2d 59.

      . Branscum v. Glaser, Mo.Sup., 234 S.W.2d 626.

      . Folluo v. Gray, Mo.App., 256 S.W.2d 273.

      . (He was oblivious of the southbound vehicle preceding him, oblivious of the other traffic, and oblivious of the Oldsmobile until just before the collision.)

      . Rosenkoetter v. Fleer, Mo.Sup., 155 S.W.2d 157, 159; DeVoto v. St. Louis Public Service Co., Mo.App., 238 S.W.2d 66, 72-73; Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, 114; Rayburn v. Fricke, Mo.App., 243 S.W.2d 768; Burke v. Renick, Mo.App., 249 S.W.2d 513, 517: Douglas v. Whitledge, Mo. App., 302 S.W.2d 294, 303; Nydegger v. Mason, Mo.Sup., 315 S.W.2d 816 [3].

      . Taylor v. Alexander, Mo.Sup., 283 S.W.2d 588, 590-591; Witt v. Peterson, Mo.Sup., 310 S.W.2d 857, 861; DeVoto v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 355; Litt v. Allen, Mo.App., 313 S.W.2d 183.


author: WELBORN, Commissioner.

text:
    Ruth MITCHELL, Plaintiff-Respondent, v. FARMERS INSURANCE EXCHANGE, Defendant-Appellant, and Farmers Underwriters Association, Attorney-in-Fact for Farmers Insurance Exchange, and Derrel M. Kontz, Defendants.
    No. 51304.
    Supreme Court of Missouri, Division No. 1.
    Dec. 13, 1965.

      David G. Dempsey, Eaker, Dempsey & Dempsey, Clayton, for plaintiff-respondent.
    Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons, Clayton, for defendant, Farmers Ins. Exchange.
   WELBORN, Commissioner.

This is a proceeding by which plaintiff-respondent Ruth Mitchell sought to apply the indemnity provisions of an automobile liability insurance policy to the payment of a $25,000 judgment obtained by her against Derrel Kontz for the death of her husband in an automobile accident. The action was brought against Farmers Insurance Exchange (hereinafter referred to as “Farmers”), its attorney in fact, Farmers Underwriters Association, and Kontz, the alleged insured of Farmers. Farmers defended on the grounds that the policy of insurance upon which its asserted liability was based was not in effect on the date of the accident. It also contended that the judgment against Kontz was obtained by the fraud and collusion of plaintiff Mitchell and defendant Kontz. The trial court found against Farmers on both issues and rendered judgment for plaintiff against Farmers Insurance Exchange for $28,908.33. This appeal followed.

Farmers issued to Derrel Kontz its automobile liability insurance policy for a period effective November 3, 1960 to May 3, 1961. Bodily injury liability coverage was in the amount of $25,000 for each person and $50,000 for each occurrence. Comprehensive and collision coverage were also provided for Kontz’s 1956 Pontiac automobile.

Approximately 25 days prior to May 3, 1961, a renewal notice was sent to Kontz from Farmers’ home office in Los Angeles, notifying him that continuance of the insurance in effect after May 3, 1961 required payment of a further premium. ■ The renewal premium was not paid prior to May 3, 1961, and, on May 10, Farmers’ regional office in Mission, Kansas, mailed to Kontz an “Avoid Lapse” notice, containing the following statement:

“Although the due date of your premium has passed, you can still prevent cancellation. Payment within 15 days of due date, will renew your policy without interruption of coverage, otherwise coverage stops at due date.”

This notice was received by Kontz and on May 17, 1961, his wife drew a check on their joint bank account in the St. John’s Community Bank, payable to Farmers for $28.71. Mrs. Kontz testified that, although she actually drew the check on May 17, she dated it May 18. She testified that she placed the check and a copy of the “Avoid Lapse” notice in an envelope addressed to Farmers at Mission, Kansas. She testified that she gave the letter to her ward, Kathleen Marlen, then thirteen years of age, at around 9:00 p. m. on the evening of May 17 and directed her to take it to a mailbox in the vicinity of St. Ann. Kathleen testified that she deposited the letter in the box at the corner of Adié and St. Charles Rock Road at around 8:30 or 9:00 o’clock that evening.

There was evidence that, if the Kontz letter had followed the usual course, it would have been received at the Mission post office by 9:00 a. m., Friday, May 19. Farmers picks up its mail at the Mission post office twice daily, before 7:30 a. m. and before noon, Monday through Friday.

Early in the morning of Saturday, May 20, Kontz and a fellow-employee at Wagner Electric, George Edward Mitchell, left on a fishing trip in Kontz’s Pontiac. At approximately 1:30 a. m., the vehicle, with the two men in it, ran off Highway 21 in St. Louis County and overturned. Mitchell was thrown beneath the vehicle and died at the scene from injuries which he sustained. Kontz, seriously injured, was taken to St. Louis County Hospital.

On Monday, May 22, the Mail Department of Farmers at Mission opened the letter from Mrs. Kontz and forwarded the Kontz check and “Avoid Lapse” notice to the Cash Receipts Department, which stamped the check to show its receipt on May 22. The check was deposited by Farmers in the Commerce Trust Company in Kansas City on May 23, and the Cash Receipts Department of Farmers stamped the “Avoid Lapse” notice which had been returned to it “PAID” on that date. In accordance with Farmers’ practice, no notice of receipt of the premium or of extension of the period of coverage was sent Kontz.

On June 6, 1961, the St. Louis Branch Claims Office of Farmers received verbal notice of the May 20th accident. An accident report form was mailed by a Farmers’ agent to Kontz on June 6 and it was filled in and returned to Farmers by mail on June 15. Also on June 6, the St. Louis Branch Claims Office addressed a “COVERAGE CONFIRMATION ADVICE” to Farmers’ Mission office. The document described Kontz as the insured, gave the policy number, the coverage and loss date of “5-20-61.” When this inquiry reached Mission, the records there were examined and a clerk in the office, M. Cady, signed the document, indicating “COVERAGE & STATUS O.K. FOR THIS DATE OF LOSS.”

On June 8, 1961, a Farmers’ claim representative made an offer to Kontz to settle the property damage loss for $500, net. On June 23, the St. Louis Claims representative wrote Kontz, confirming the verbal offer of June 8 to settle the property damage claim.

On the same date, the Underwriting Department of Farmers in Mission, upon review of its file on Kontz’s policy, concluded that the insurance policy was not properly in effect on May 20, and concluded that it should be reinstated, effective May 23. On June 26, an endorsement to such effect was mailed Kontz from Mission.

On June 29, 1961, the St. Louis Claims Office issued a draft for $500 payable to Kontz and a financing agency. However, Mission refused the draft on the grounds that the claim was not covered. Refusal of the draft was the first knowledge that the St. Louis Claims Office had of the coverage question.

In October, 1961, Mrs. Mitchell filed her petition against Kontz for damages for wrongful death of her husband in the St. Louis County Circuit Court. A copy of the petition and the summons served on Kontz were sent by Kontz’s attorney to Farmers. On November 2, 1961, the Farmers’ St. Louis Branch Claims Manager returned the suit papers, stating: “The policy which Mr. Kontz carried with this Exchange was not in force when this accident occurred, * * *.”

On April 24, 1962, default judgment was entered against Kontz and in favor of Mrs. Mitchell for $25,000. This action followed.

After the trial, the court below made findings of fact and conclusions of law. The court found that the policy was in effect on May 20, 1961, and that Farmers was bound by the judgment in the action against Kontz on the issue of who was driving the automobile at the time of the accident.

On this appeal, appellant contends that the policy was not in effect on May 20; that by its terms it applied for a six months’ term, from November 3, 1960 to May 3, 1961, at 12:01 a. m., standard time, and for additional terms of six calendar months for which the required premium is paid; that the “Avoid Lapse” notice extended the time for payment for only 15 days from the due date; that the evidence failed to prove that the payment had been placed in the mail prior to the due date; that, in any event, the payment had not been received by Farmers prior to such date, and therefore, the policy, by its terms, had lapsed for nonpayment, when, according to appellant, payment was actually received on May 22.

Farmers’ argument overlooks the inescapable conclusion that, regardless of the time limits fixed by the policy and by the “Avoid Lapse” notice, and regardless of whether, by Farmers’ practice, deposit of premium in the post office was not considered payment, all such requirements were waived by Farmers. There can be no question that, when Farmers’ Mission office opened Mrs. Kontz’s letter on May 22, personnel who handled the payment were aware that more than 15 days had elapsed since May 3, the due date of the premium, as shown by the accompanying “Avoid Lapse” notice. Despite that fact, Farmers treated the payment as a routine renewal. The check was accepted and deposited to Farmers’ account. The “Avoid Lapse” notice was marked “PAID” and Kontz’s policy record continued in the active policy files of the company. The policy itself did not expressly require renewal premiums to be paid prior to the renewal term. Its language specified an original term “and additional terms of six calendar months each for which the required premium is paid.” Compare with language found in the policy involved in M. F. A. Mutual Ins. Co. v. Quinn, Mo.App., 259 S.W.2d 854. Even if other provisions of the policy here in question could be considered as imposing a requirement of payment in advance of the renewal term, the “Avoid Lapse” notice waived any such requirement and offered to extend the payment period 15 days beyond the expiration date.

Farmers, having specified the payment terms, could waive its requirements. M. F. A. Mutual Ins. Co. v. Quinn, Mo.App., 259 S.W.2d 854, 859 [5-8]. Here the facts bespeak waiver in such unequivocal terms that we need not concern ourselves with the question of whether or not, by its ordinary practices, Farmers considers the time of mailing or the time of its receipt as payment. There was some conflict in the evidence in this regard. Of interest in this connection was an acknowledged practice on the part of Farmers to retain remittance envelopes for a period of 90 days. Here, although the coverage question arose within the 90-day period, no effort appears to have been made to examine and preserve the envelope received from Mrs. Kontz. In any event, Farmers did not choose to reject the payment either because it had not been mailed (if such was the case) before May 18, or because it had not been received before that date. Having raised no objection to payment by personal check, having deposited the check to its account and the check having been duly paid by the bank upon which it was drawn, Farmers is in no position to urge that there was no payment until the check had actually been paid. We need not concern ourselves with what the effect of nonpayment or merely holding the check might have been. That is not the situation here and cases cited by Farmers, dealing with such situations, have no application here.

Basically, the question here is what, if any, effect upon Farmers’ waiver may be accorded the fact that the occurrence of the accident out of which the asserted liability arises happened prior to Farmers’ waiver and that Farmers’ action was taken without knowledge of the accident. The evidence is clear as to what Farmers’ practice was in a case such as this. Whether or not the practice has a justifiable legal basis is the problem.

The evidence showed that, although Farmers sent out 15-day “Avoid Lapse” notices, it actually took no action to terminate policies until approximately 25 days after the end of the policy term. At that time, a “Final Lapse” notice was sent to the policyholder. After the “Final Lapse” notice, payment required reinstatement of the policy. However, if payment was received before the “Final Lapse” notice was sent, whether within the 15-day grace period or thereafter, the payment was accepted and the policy extended for the specified term from its former expiration date.

To this practice there was a significant exception which Farmers would apply here: If there had been a loss between the expiration of the 15-day grace period and the receipt of premium, prior to the “Final Lapse” notice, the policy was reinstated as of the date of payment of the premium. However, there was no evidence that such position was communicated to Farmers’ policyholders. In fact, the position was not well-communicated to Farmers’ employees, at least not to M. Cady who issued the June 6th coverage confirmation. Farmers introduced as an exhibit a volume entitled “Farmers and Mid-Century, Volume I.” According to Farmers, this book was used for educational training of employees and in rendering service to customers. “The volume also contains a formulation of the company’s policy regarding renewals and sending of notices.” Farmers points to a paragraph of the manual which states: “If the payment of the renewal premium is not received by approximately the ninth day after the renewal date, a reminder notice is sent to the insured. Although the notice grants an extension to the fifteenth day beyond the renewal date, it is contingent upon the payment being received during that period. If the payment is not received, the policy lapses as of the renewal date.”

However, Farmers points to nothing in the manual which states the policy or practice that is here invoked. On the next page beyond the paragraph quoted by Farmers, the following appears: “If, 25 days after the premium due or renewal date, the insured has not paid his premium, the policy is considered lapsed as of the renewal date.” Insofar as has been pointed out or as we have been able to discover, the manual is silent as to the situation between the 15th and 25th days.

Having accepted the premium beyond the 15-day grace period, Farmers might well have been prohibited from imposing a communicated condition upon the payment. See Andrus v. Fidelity Mutual Life Ins. Ass’n, 168 Mo. 151, 67 S.W. 582; Donnegan v. Court of Honor, Mo.App., 251 S.W. 165. Clearly, however, it could not impose an uncommunicated condition upon the acceptance of the payment. As stated in Equitable Life Assurance Society v. Brewer, 225 Ky. 472, 475, 9 S.W.2d 206, 207: “When the payment of the premium was tendered after the grace period had expired, the company was not required to accept it; but, when the company did accept it, it was incumbent on it to bring home to the insured any conditions it desired to impose. The company could not take the money of the assured as a payment of the premium, retain and use it, and at the same deny that payment was made.” See also Shea v. Massachusetts Benefit Ass’n, 160 Mass. 289, 35 N.E. 855, 39 Am.St.Rep. 475; McDonald v. Equitable Life Assurance Society, 185 Iowa 1008, 169 N.W. 352.

We need not concern ourselves with what the situation might be had the renewal been attempted by the insured or one in his behalf, with knowledge of a loss which was withheld from the insurer. Here the trial court believed Mrs. Kontz and her ward when they testified that the premium payment had been deposited in the mail on May 17. The trial court was in a better position than we to pass upon the credibility of these witnesses. We find no reason to disagree with his conclusion. Evidence that, had the letter been mailed on May 17, it might have reached Farmers and been processed on Friday, May 19, does not disprove the witnesses’ testimony. The vagaries of the mail are such that a delay of approximately 3Y2 hours in the usual handling time which would have caused the letter not to be opened until Monday is neither impossible nor improbable. We would not on a contrary assumption reject the trial court’s finding on the definite oral testimony which he heard.

This is not a case of creation of new rights, as appellant argues, which did not exist at the time of a purported waiver or estoppel. The policy of insurance was a continuing policy. As above pointed out, our courts have consistently held that conditions for payment of premium may be waived by the insurer, as was done in this case. The cases cited by appellant (Linenschmidt v. Continental Casualty Co., 356 Mo. 914, 204 S.W.2d 295, Rosenberg v. General Accident Fire & Life Assurance Co., Ltd., Mo.App., 246 S.W. 1009, Simpson v. American Automobile Ins. Co., Mo.App., 327 S.W.2d 519, and Graham v. Gardner, Mo.App., 233 S.W.2d 797) involved an attempt to establish liability against the insurer by waiver or estoppel arising out of a matter other than delayed premium payment.

The cases relied upon by appellant, as authority for the proposition that the nonpayment of the premium ipso facto worked a forfeiture, are not here applicable. In those cases (Kazee v. Kansas City Life Ins. Co., Mo.App., 217 S.W. 339, Ashbrook v. Phoenix Mutual Life Ins. Co., 94 Mo. 72, 6 S.W. 462, White v. Metropolitan Life Ins. Co., Mo.App., 218 S.W.2d 795, and Rocci v. Massachusetts Accident Co., 222 Mass. 336, 110 N.E. 972), there was no payment of premium and the question of waiver was not involved.

Appellant also contends that to extend coverage to Kontz in this situation would constitute discrimination against its other policyholders, in violation of § 379.470(1), RSMo 1959, V.A.M.S. According to appellant, “Under this section, if defendant extended coverage to Derrel M. Kontz for an accident that took place more than seventeen days after the policy ‘lapsed’ according to its terms, Farmers Insurance Exchange would then be unfairly discriminating against its other policyholders who were not given free coverage for any period after the expiration date of their policies.” However, there is no contention that Kontz was entitled to free coverage until May 20. Plaintiff’s position is that the policy was in effect from May 3 to November 3 and there is no suggestion otherwise.

Appellant further contends that there can be no waiver or estoppel if the insurer was ignorant of the facts, citing Booker v. Motors Ins. Corp., Mo.App., 228 S.W.2d 694, Hood v. M. F. A. Mutual Ins. Co., Mo.App., 379 S.W.2d 806, and 45 C.J.S. Insurance § 714, p. 688. Those authorities hold that waiver cannot arise by conduct of an insurer who is ignorant of the facts upon which the right to forfeiture is based. Here there is no question that appellant had full knowledge of the time of receipt of the Kontz premium and elected to accept it, nevertheless.

Farmers, having accepted the premium payment when it was received, the policy was thereby extended from its expiration date on May 3, and was in effect on the date of the accident.

On the issue of fraud and collusion, the trial court held that Farmers may not collaterally attack the judgment obtained by Mrs. Mitchell against Kontz and that Farmers is bound by the outcome of that litigation on who was driving the insured vehicle at the time of the accident. On the appeal, appellant asserts that the judgment was the product of fraud and collusion and, therefore, the trial court should have permitted relitigation of the facts of the accident.

While the trial court’s conclusion that the insurer may not collaterally attack the judgment against its insured is generally correct (Soukup v. Employers’ Liability Assur. Corp., 341 Mo. 614, 108 S.W.2d 86, 88 [1, 2], 112 A.L.R. 149), there is a generally recognized exception to the rule which permits an insurer to avoid the effect of a judgment which is the result of fraud and collusion between the insured and the injured party. State Farm Mutual Automobile Ins. Co. v. Shelton, Ky., 368 S.W.2d 734; 46 C.J.S. Insurance § 1251, p. 259.

The trial court, in accordance with Civil Rule 73.01, V.A.M.R., permitted appellant to incorporate into the record by way of offer of proof the evidence relied upon in order to prove its charge of fraud and collusion. Appellant summarizes such evidence as follows (parenthetical comment ours):

“(1) Ruth Mitchell spoke to the insured on several occasions after the accident.” (The evidence was that Mrs. Mitchell spoke to Kontz twice, once while he was still in the hospital and once when she went to the Kontz residence to pick up her husband’s personal belongings.)
“(2) Ruth Mitchell was not permitted by the Trial Court to answer whether she was advised that the St. Louis County Police Report and the Coroner’s Report indicated that her husband was driving the Kontz car at the time of the accident.” (The objection was sustained on the grounds that the question called for the rankest kind of hearsay. Appellant does not question the ruling nor does it contend that if Mrs. Mitchell had been permitted to answer, her answer would have been in the affirmative.)
“(3) Nancy Kontz spoke to Mr. Richard Jacobsmeyer, her personal attorney, on the date of the accident.” (Mrs. Kontz stated that, the morning following the accident on Saturday morning, she talked to Mr. Jacobsmeyer, who was her attorney before the accident. Her statement was: “Then it was only if he could see him or not, or to keep people from going up there.” Just what inference Farmers would draw from a conversation between Mrs. Kontz and her attorney is not clear.)
“(4) In the transcript of the Coroner’s proceedings, which was read into evidence under an offer of proof, it was stated that the Deputy Coroner in a conference with Derrel M. Kontz was advised that at the time of the accident, the decedent, George E. Mitchell, was driving the automobile and that the insured, Derrel M. Kontz, was a passenger.” (The coroner’s report indicates that Deputy Coroner Kauffmann spoke to Kontz upon arrival at the hospital at 2:28 a. m., following the accident; that Kontz had a blood alcohol content of 0.16% and was incoherent and did say that his “buddy Mitch” was driving the car. The police officer who investigated the accident was unable to obtain a statement from Kontz because of his pain. The deputy coroner returned the afternoon following the accident, but Kontz was unable to talk. On Monday, May 22, Kontz told him “I imagine I was driving the car.”)
“(5) The St. Louis County Police Report in an offer of proof indicated from the physical facts of the accident as well as the information on the report itself that the driver of the vehicle was the deceased, George E. Mitchell.” (The police report concluded that Mitchell was the driver. The conclusion was based upon the fact that Kontz was found inside the car, on the passenger side, with his legs pinned between the dashboard and the front seat and that Mitchell was pinned beneath the car on the driver’s side. The car had left the highway at a high rate of speed, traveled 222 feet in a drainage ditch, struck a culvert and flipped over twice. The violence of the vehicle’s travel would cast doubt upon a conclusion as to who was driving it, based upon the position of the passengers at the end of the vehicle’s course.)
“(6) In the default judgment that was entered against Derrel M. Kcntz, he was not subpoenaed to appear in court and excerpts from a deposition of Derrel M. Kontz were read into evidence. Evidence that was readily available was not introduced which would shed light on whether or not Kontz was the driver of this vehicle at the time of the accident. No questions were asked of Patrolman Gene Nelson in this default judgment proceeding as to the positions of the deceased and Derrel M. Kontz when he found them after the accident or the movements of the car up to the point where he found the vehicle as evidenced by ruts and skidmarks. Of course, he was not asked who was the driver of the vehicle.” (We know of no rule or practice that called for the subpoenaing of the defaulting defendant as a witness. The trial judge at the default proceedings did question the investigating patrolman about the positions of Mitchell and Kontz following the accident, and developed the information referred to in (5) above.)
“(7) Derrel M. Kontz, in his report to the Farmers Insurance Exchange, stated he was uncertain who was driving his vehicle at the time of the accident. (8) In the report to the Safety Responsibility Unit of the State of Missouri, Derrel M. Kontz stated he was uncertain as to who was driving his vehicle at the time of the accident and he added on this report, ‘I don’t know if I was driving the machine or my buddy.’ In another deposition, he did not know who was driving at the moment of the accident.” (Kontz did make such statements, which were inconsistent with the purported statement which he made to the coroner. However, except for the statement to the coroner, Kontz’s statement was that the last thing he remembered prior to the accident was that he was driving, but that he did not remember the accident.)

Considering, on our de novo review on this appeal, that the evidence which appellant points to as establishing fraud and collusion was admissible, we think that it clearly fails to rise to the level of clear, cogent and convincing proof of Farmers’ defense of fraud and collusion. Kontz did make inconsistent statements as to who was driving the car. If it were a fact that he was driving, proof of Mrs. Mitchell’s awareness of such fact at the best amounts to no more than speculation and suspicion. Farmers elected not to defend the original action. If it is to avoid liability now, the burden of proof of its allegations of fraud and collusion is on it and it has failed to carry such burden.

The judgment is affirmed.

HOUSER and HIGGINS, CG, concur.

PER CURIAM.

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

All of the Judges concur.