author: EAGER, Presiding Justice.

text:
    The EMERSON ELECTRIC MANUFACTURING COMPANY, a Corporation, Plaintiff-Respondent, North Hills Homesites et al., Plaintiffs-Appellants, v. CITY OF FERGUSON, a Municipal Corporation, Defendant-Appellant, and The Town of Normandy, a Municipal Corporation, Intervenor-Appellant.
    No. 48630.
    Supreme Court of Missouri, Division No. 2.
    July 30, 1962.
    Carleno & Nick, Ferguson, Wehrle & Wehrle, Clayton, for appellant, City of Ferguson.
    Bardgett, Gallagher & Hackmeyer and John E. Bardgett, Clayton, for intervenor-appellant, Town of Normandy.
    William J. Costello and John C. Han-negan, St. Louis, for appellants North Hills Homesites and others.
    R. H. McRoberts, T. V. Connelly, A. H. Kerth, St. Louis, Bryan, Cave, McPheeters & McRoberts, St. Louis, Kerth, Thies & Schreiber, Clayton, of counsel, for plaintiff-respondent. Emerson Electric Mfg. Co.
   EAGER, Presiding Justice.

This proceeding consists of two consolidated causes, in each of which there was an intervention by consent. The causes were consolidated for trial by order of court with the agreement of the parties. In one cause Emerson Electric Manufacturing Company sought a declaration that Ordinance No. 116 of the City of Ferguson, purporting to so extend its boundaries as to annex the Emerson property, was void; Emerson alleged that the attempted annexation was unreasonable, oppressive, and void on sundry stated grounds. It also sought an injunction against the levying and collecting of taxes from it under and pursuant to said ordinance. In a second count it pleaded that Ferguson lacked authority to annex its property or exercise any control over it because of a prior proceeding instituted by the Town of Normandy, the intervenor. In a third count it asserted that its property was located in an incorporated area, to-wit, St. Louis County, which was organized as a charter county pursuant to Art. 6, § 18, Mo.Const., 1945, V.A.M.S., and that it was therefore exempt from Ferguson’s annexation. A fourth count is wholly immaterial here. The other cause was a similar suit instituted as a class action against Ferguson by residents of North Hills Homesites. Ferguson had purported to annex that subdivision under a separate and subsequent Ordinance No. 214. That petition alleged that the purported annexation was “unreasonable, arbitrary, fraudulent, illegal and unconstitutional * * It specifically alleged the existence of prior proceedings to annex the same territory by the Town of Normandy, the priority of Normandy’s proceedings, and the fact that North Hills was merely being used as part of a scheme of Ferguson to annex the plant of Emerson Electric and to make that annexation appear more reasonable. The annexation of North Hills by Ferguson was alleged to be unreasonable on sundry specific grounds. North Hills also attempted to raise the same supposed constitutional question mentioned above as constituting Emerson’s third count.

The respective Intervening Petitions of the Town of Normandy set up its priority in right to the annexation of both the Emerson and North Hills properties (by factual allegations) and the consequent lack of all right and authority in Ferguson; it prayed a decree adjudging the Ferguson annexation, in each case, to be void, and for injunctions.

The trial court held sundry hearings, made extensive findings of fact and filed a memorandum opinion. It entered separate judgments. In the Emerson case it adjudged that the annexation by Ferguson was unreasonable and void, but held that Normandy had not acquired priority of jurisdiction. In so doing, its findings dealt in considerable detail with the nature, use and status of the Emerson property and with the specific reasons why such an annexation was neither necessary nor reasonable. It declared and adjudged that Ordinance No. 116 of Ferguson was “unreasonable, unjust, oppressive and, * * * void.” It enjoined the enforcement of that ordinance, the exercise of jurisdiction thereunder, and also the “levying, assessing or collecting” of municipal taxes. In the North Hills case it declared that the annexing ordinance of Ferguson was reasonable and valid, making findings of various supporting facts. It again disallowed the claim of Normandy to any prior right or jurisdiction. Ferguson, North Hills and Normandy, after unsuccessful motions in the trial court, have appealed. Since the causes were consolidated below, they are here oh a joint transcript.

While none of the parties initially questioned the jurisdiction of this court, we have entertained substantial doubt that we have jurisdiction. We questioned counsel at some length on this score during the oral argument, and have since invited and received written suggestions on the subject from counsel. It is hardly necessary to say that we have no right to determine the merits unless some ground of our jurisdiction is affirmatively established. Cotton v. Iowa Mutual Liability Insurance Co., 363 Mo. 400, 251 S.W.2d 246; Blair v. Hamilton, Mo., 292 S.W.2d 578.

We have determined that we do not have jurisdiction and that the consolidated cases must be transferred to the St. Louis Court of Appeals. In Emerson’s Count III (repeated to some extent by North Hills) it raised the point that the area where its plant was located lay in St. Louis County, which had adopted a County Charter under Art. 6, § 18, Mo.Const.,1945, and that the area was therefore already incorporated into a municipal corporation and might not be annexed; thus, the purported annexation proceedings were alleged to be void as in conflict with said Art. 6, § 18. That constitutional question was determined adversely to Emerson’s contention in City of Olivette v. Graeler, Mo., 338 S.W.2d 827, and, of course, it is now moot. In fact, it has not been briefed in this case.

Any remaining contention of jurisdiction here must rest upon the “amount in dispute.” (Mo.Const., 1945, Art. 5, § 3.) We must recall that these suits are, primarily, actions to test the reasonableness of specific ordinances of annexation and to procure adjudications that the respective annexations are void. These are not suits filed primarily to invalidate any taxes. Incidentally and prospectively, the plaintiffs sought also to enjoin the levy and collection of those future taxes and license fees which would result from the annexation; and the trial court did so enjoin the collection of taxes in the Emerson case. The record does not show that any taxes have ever actually been assessed or levied against these properties, or that any of the properties involved have been placed on the tax rolls of Ferguson. Essentially, what the record does show is this: that the Emerson real estate and tangible personal property is carried by St. Louis County at a valuation of $2,981,300; that based upon this valuation and the Ferguson tax rate for the year 1959 the property taxes, real and personal, would have been $32,496.17; that, dependent upon the method adopted in assessing the tax, Emerson would have been subjected to a merchants’ and manufacturers’ license tax for the year ending September 30, 1958, of $22,544.80 or $34,062, with a slight increase for the next year. The record shows nothing with reference to any valuations or prospective taxes on North Hills where, of course, the ownership lay in many individuals. There was testimony from a real estate appraiser of unquestioned standing that, in his opinion, the value of the Emerson property would be decreased or depreciated in total value, if annexed, by a minimum of $750,000 to a maximum of slightly over one million dollars, dependent upon the amount of taxes to be levied upon it. This witness explained that he had merely capitalized the prospective tax burden to be levied (a method which he said was generally used) and that he based his conclusions upon taxes alone, allowing three credits to be expected from a prospective annexation, namely, —the elimination of the county library tax, the present cost of garbage disposal, and the cost of an existing contract for supplemental fire services. He had not made any independent appraisal of the property.

The great majority of annexation cases which have been decided in this court have involved constitutional questions. City of Olivette v. Graeler, Mo., 338 S.W.2d 827; City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4; McConnell v. City of Kansas City, Mo., 282 S.W.2d 518; Hislop v. Joplin, 250 Mo. 588, 157 S.W. 625; State ex rel. Musser v. Birch, 186 Mo. 205, 85 S.W. 361; Copeland v. City of St. Joseph, 126 Mo. 417, 29 S.W. 281; State ex rel. Moody v. Wardell, 153 Mo. 319, 54 S.W. 574; Kansas City v. Stegmiller, 151 Mo. 189, 52 S.W. 723; City of Westport v. Kansas City, 103 Mo. 141, 15 S.W. 68; Nolting v. City of Overland, 354 Mo. 960, 192 S.W.2d 863; Powell v. City of Joplin, 335 Mo. 562, 73 S.W.2d 408. The cases of State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762, State ex inf. Major v. Kansas City, 233 Mo. 162, 134 S.W. 1007, and State ex rel. Brown v. Town of Westport, 116 Mo. 582, 22 S.W. 888, were original quo warranto proceedings filed in this court. The recent case of Mayor, Councilmen & Citizens of City of Liberty v. Dealers Transport Co., Mo., 343 S.W.2d 40, came here on transfer from a Court of Appeals, as did the older case of State ex inf. Mallett ex rel. Wommack v. City of Joplin, 332 Mo. 1193, 62 S.W.2d 393. Hixson v. Kansas City, 361 Mo. 1211, 239 S.W.2d 341, involved the effect of the prior quo warranto judgment of this court in the Taylor case, supra, —i. e., on the principle of res adjudicata. Jurisdiction once established would normally continue, in order to give effect to our judgment.

Generally, if a suit is not one for a money judgment the test of our jurisdiction is “ ‘the money value of the relief to the plaintiff, or of the loss to defendant, should the relief be granted, or vice versa, should the relief he denied.’ ” Superior Press Brick Co. v. City of St. Louis, Mo., 152 S.W.2d 178, loc. cit. 183. Bauer v. City of Berkeley, Mo., 278 S.W.2d 772; Koch v. Board of Regents of Northwest Missouri State College, Mo., 256 S.W.2d 785; Evens & Howard Fire Brick Co. v. St. Louis Smelting & Refining Co., 48 Mo.App. 634. But the value or amount must affirmatively appear from the record, and without requiring speculation. While the rule is applied more frequently in cases involving real estate than otherwise, the test of our jurisdiction is not what may be affected by the result of the case, but what is directly involved in the suit. Pursley v. Pursley, Mo., 213 S.W.2d 291, 292; Gary Realty Co. v. Kelly, 284 Mo. 418, 224 S.W. 410, 412; In re Jackson’s Will, Mo.App., 291 S.W.2d 214, 218. In the latter case the court said: “But the test again is not the amount which may be affected, but the amount actually involved in the suit.” We have accepted jurisdiction of various cases involving taxes where the validity or amount of a tax is the issue to be determined (i. e., it is directly in issue), such as: Mississippi River Fuel Corp. v. Smith, 350 Mo. 1, 164 S.W.2d 370, applicability of the sales tax law to natural gas sales in a direct suit seeking to declare the law inapplicable; May Dept. Stores Co. v. State Tax Commission, Mo., 308 S.W.2d 748, direct review of the valuation of property by State Tax Commission; Anderson Air Activities, Inc. v. Division of Employment Security, Mo., 321 S.W.2d 710, judicial review of decision fixing contribution rate and directly involving a $34,348.-16 tax difference; Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509, suit to enjoin extension of tax levy already voted. Cooper, supra, has been relied on by the parties here as establishing our jurisdiction. There the school board had fixed an additional school tax levy and the people had approved it at an election; the remaining steps necessary to enforce the tax were merely ministerial, i. e., the certification of the vote and the extension of the tax on the books. Suit was filed by taxpayers to enjoin the taking of these steps on the ground that unqualified voters had voted in the election. Jurisdiction was retained on the ground that it appeared of record that if defendants were so enjoined, the district would sustain a loss of approximately $3,000,000. That, as will be noted, was a suit to enjoin the enforcement of an adopted tax levy, and it may reasonably be said that the tax was directly in dispute; its validity was the sole and primary issue.

In these present suits the real issue is annexation, — yes or no, — not taxes. An annexation involves many things besides taxes. The levy and imposition of taxes would come merely as an incidental burden if and when the annexations are sustained. We must and do hold that the amounts of the prospective taxes here do not constitute an “amount in dispute” so as to give us jurisdiction. We have not overlooked the testimony concerning the supposed depreciation of the Emerson property in the event the annexation is consummated ; but that witness based his opinion solely on the anticipated tax burden, as capitalized. It is no more effective, from a jurisdictional standpoint, to say that the imposition of taxes would cause a depreciation than to say that the taxes, specifically and of themselves, constitute an “amount in dispute.” The depreciation of the property, where based solely on the prospective taxes, cannot be made a ground of jurisdiction if the taxes themselves would furnish no ground; it would constitute a mere secondary result. There are cases where the depreciation of property by reason of the enforcement of restrictions has been held to be a ground of jurisdiction (Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346; Rombauer v. Compton Heights Christian Church, 328 Mo. 1, 40 S.W.2d 545; Andrews v. Metropolitan Bldg. Co., 349 Mo. 927, 163 S.W.2d 1024), but this is not such a case. In those cases the validity of the restrictions themselves constituted the issue in dispute, and the restrictions and the depreciation were actually parts of the same thing, operating contemporaneously. The same is true of suits to enjoin a certain use of land, or a nuisance. Evens & Howard Fire Brick Co. v. St. Louis Smelting & Refining Co., 48 Mo.App. 634; Aufderheide v. Polar Wave Ice & Fuel Co., 319 Mo. 337, 4 S.W.2d 776. In other words, the sole issue in those cases was the right to use the property in a certain way, and this, granted or denied, automatically established its greater or lesser value.

In most of the cases cited by respondent Emerson, it was clear that some monetary value was directly in issue, and the question was its amount; Evens & Howard Fire Brick Co. v. St. Louis Smelting & Refining Co., 48 Mo.App. 634; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S.W. 391, 56 L.R.A. 951, 90 Am.St.Rep. 440; Aufderheide v. Polar Wave Ice & Fuel Co., 319 Mo. 337, 4 S.W.2d 776. Here there is little or no question about the “value” of the taxes. The principal difficulty is that the taxes are not directly in dispute. In so far as we have found, this precise question has not previously been decided. Counsel cite the case of Schildnecht v. City of Joplin, 327 Mo. 126, 35 S.W.2d 35, as applicable in principle. The court there held that the mere assumption of municipal jurisdiction over a territory did not give this court jurisdiction, or “signify a dispute over a monetary amount exceeding $7,500.” If the case could possibly be construed as indicating that prospective taxes in that amount (though not so stated) would give us jurisdiction, such a holding would be dicta, at best. The same may be said of: Ward v. Consolidated School District No. 136 of Nodaway County, 320 Mo. 385, 7 S.W.2d 689, in which (a suit to enjoin a school bond election) some reference was made to the possible taxes which plaintiffs might save; and Koch v. Board of Regents of Northwest Missouri State College, Mo., 256 S.W.2d 785, where the only issue was the validity of a building contract, and a somewhat similar reference was made.

It may be significant to note that in annexation cases there is no power or authority to levy or assess taxes until the annexation becomes final. In those cases subject to the Sawyers Act, § 71.015, this can only come after a declaratory judgment is obtained, and the steps “otherwise authorized by law or charter” are performed. City of Olivette v. Graeler, Mo., 338 S.W.2d 827, 833. In an annexation by a charter city the proceeding is not completed until submitted to and approved by a vote of the people. In both of the present proceedings, injunction suits were filed before the city would, presumably, have had any opportunity to assess and put the property on its books after the respective elections (one within five months and one within one month).

An annexation proceeding is not an ordinary suit between specific persons, individual or corporate. The citizens of the annexing city or town have an interest in its expansion, and the people whose property is to be annexed also have an interest, even though only certain ones appear and protest. In seeking to determine whether a specific monetary amount remains in dispute, independent of all contingencies (Snowbarger v. M.F.A. Central Cooperative, Banc, Mo., 317 S.W.2d 390, 393), we would be forced to balance all possible prospective benefits against the prospective burdens. This would obviously involve much speculation. It is true that Emerson denies that it would receive any benefits here except three items totalling some $6,-656.34; but we cannot say, with the certainty required in an assertion of jurisdiction, that its property will not be benefited in other respects, tangible or intangible. North Hills has apparently already received direct and substantial benefits, but our real question of jurisdiction lies in the Emerson case, for North Hills has made no independent attempt to establish jurisdiction here. We doubt seriously that any annexation case is susceptible of being reduced to a monetary “amount in dispute” so as to make our jurisdiction appear affirmatively and without speculation.

We hold that a value exceeding $15,000 is not affirmatively shown to be directly in dispute here, and that we do not have jurisdiction. We have read all of the five-volume record in this case, largely to ascertain whether any ground of jurisdiction appeared. The consolidated cases will be transferred to the St. Louis Court of Appeals.

All of the Judges concur.


source: Caselaw Access Project

author: McDowell, judge.

license: Public Domain

text:
    Arlene REAMES, Plaintiff-Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Respondent. Arlene REAMES, Plaintiff-Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Appellant.
    Nos. 8040, 8041.
    Springfield Court of Appeals. Missouri.
    June 20, 1962.
    Motions to Modify to Transfer to Supreme Court, and for Rehearing Denied July 18, 1962.
    Application to Transfer to Supreme Court Denied Sept. 10, 1962.

      Jones & Jones, Langdon R. Jones, Robert H. Jones, Kennett, for Reames.
    . Ward & Reeves, Caruthersville, for St. Louis-San Francisco R. Co.
   McDowell, judge.

Arlene Reames, plaintiff-appellant, brought this action in the Circuit Court of Dunklin County, Missouri, against defendant, St. Louis-San Francisco Railway Company, a corporation, for damages in the sum of $25,000.00 for the wrongful death of her husband, Homer Reames, killed January 4, 1960, on Highway EE, being the north by-pass, in the city of Kennett, when deceased’s automobile crashed into the side of defendant’s diesel engine, momentarily stopped on the railroad crossing.

The cause was tried by jury and a verdict and judgment rendered for plaintiff for $12,500. Both parties appealed. Since the appeals are by opposing parties from the same judgment, they are consolidated in this court for opinion.

Plaintiff’s appeal is case No. 8040. The issue presented is limited to damages only.

Defendant’s appeal is case No. 8041, and involves the sole question of whether or not plaintiff made a submissible humanitarian negligence case against defendant based upon the failure of defendant to sound a warning signal as deceased Reames’ automobile approached defendant’s engine.

Plaintiff’s petition is in conventional form, both primary and humanitarian negligence are charged.

The answer admitted the formal allegations of the petition but denied all other allegations of negligence, both primary and humanitarian.

In the trial plaintiff abandoned acts of primary negligence and submitted her case on humanitarian negligence.

The jury found the issues for plaintiff and assessed her damages at $12,500. On this verdict the court entered judgment.

Defendant’s motions for directed verdict at the close of plaintiff’s case and at the close of the whole case and its after-trial motion for judgment in accordance with its motion for directed verdict were overruled.

Motions for new trial were filed by both plaintiff and defendant and both parties appealed.

The evidence necessary to determine the issues involved in plaintiff’s appeal, case No. 8040, is as follows: By stipulation it is agreed that at the time of the death of Homer Reames he was in good health, 58 years of age at his next birthday and earning $6,540.00 per year before taxes. It was admitted that according to the American Experience Table of Mortality the prospective life of a man 58 years old is 15.39 years; that deceased, Homer Reames, was a man of good habits.

Plaintiff testified she was the age of 55 years and at the time of trial was a saleswoman; that the deceased paid the expenses of the home; that at the time of his death the only members of the household were plaintiff and deceased; that he helped her on Saturday afternoons and Sundays, took care of the car, mowed the lawn, cleaned the stove and refrigerator, paid all the bills, did grocery shopping and drove the family automobile. She stated her health was good. By stipulation it was admitted that according to the American Experience Table of Mortality, the life expectancy of a woman 55 years of age is 17.40 years; that at the time of the death of deceased he was manager of the Arkansas-Missouri Power Company at Kennett.

The case in appeal No. 8041 was submitted solely on humanitarian negligence for alleged failure of engineer Ryan to sound a warning signal as the Reames automobile approached the diesel engine standing across the highway. The issue presented is whether a jury case was made on this theory. We will state the facts shown by plaintiff’s evidence from the viewpoint most favorable to her.

Highway EE, being the north by-pass in Kennett, runs generally north and south through the western edge thereof and circles northeasterly around the north side. Defendant’s railroad runs generally east and west and crosses this highway. There are two industries served by the railroad in this part of the city, one about 600 feet east of the highway and the other immediately west of the highway and just south of the tracks. On the night of January 4, 1960, the local freight train switcher of defendant had done switching at the industry some 600 feet east of the by-pass after which the diesel engine, with two box cars attached, proceeded west for the purpose of dropping a car at the industry immediately west of the by-pass. The switch stand for this industry was just west of the by-pass. The engine pulled on and across the by-pass at a slow rate of speed with the front end of the engine some 7 to 20 feet beyond the west edge of the pavement so the trainmen could ascertain if there was room to spot the car on the spur serving the industry as there were other cars already on the spur track. The rear of the engine was near the east edge of the pavement. The engine is approximately 55 feet long and 14 feet high.

At the time the engine approached and stopped on the highway, the engineer was on the fireman’s side on the south side of the engine and the fireman was the acting engineer on the north side. The two brakemen rode the front of the engine. When the train stopped Bob Clippard, the head brakeman, got off the engine and stood on the crossing on the north side with his lantern to flag traffic coming from the north. He testified that the other fireman, Smiley, got off and walked ahead of the engine; that no one was flagging the south side of the engine. There was no traffic approaching the crossing on Highway EE from either direction.

The evidence is that as the train approached the crossing whistle signals were given but none were given after the engine stopped. The whistle signal could be sounded by either the fireman or engineer without moving from their seats.

The diesel engine had been stationary on the by-pass crossing from 12 to 25 seconds when deceased crashed into the south side of it near the steps on the rear thereof, about 7:32 P.M.

Clippard testified that he did not see the plaintiff’s automobile but heard the impact when it struck the engine; that when he went around the front of the engine the headlights on the Reames car were not burning. He stated the headlight on the engine was not shining on the highway during the 15 to 25 seconds that the engine was stationary on the crossing.

The width of the by-pass highway was 19.6 feet and practically level at the crossing. The highway is straight for a distance of 375 feet south of the crossing where a slight curve begins, but the sight distance along the highway to the south from the crossing is 1496.50 feet. There is a highway railroad crossing sign south on the east side of the by-pass 549 feet south of the crossing. The crossing was also protected by cross-arms. The evidence is that there was a white house on the west side of the by-pass, south of the crossing, 788.6 feet and a red brick house south of the crossing on the west side of the highway 1004.4 feet.

The diesel engine was painted a dark color with large yellow stripes on its sides which illuminates when lights shine on it. During the 12 to 25 seconds the engine was on the crossing, prior to the collision, the headlight was burning, and the number lights on the south side and near each end of the engine were burning, as well as a light near the cab and these lights can be seen for a distance of 200 feet.

The diesel engine on the crossing was plainly visible to deceased when he was at the first white house on the west side of the by-pass and south of the crossing, a distance of 788.6 feet. On the night in question it was cloudy and cold but visibility was good.

No member of the train crew saw the Reames automobile until almost the instant of impact at which time engineer, Ryan, heard the “squeal on the pavement”. He then turned his head and saw the Reames car. The deceased had attended a stag dinner and was returning home on the bypass. His hearing and eyesight were good, the headlights on his automobile were burning before the collision. His car skidded on the east lane of blacktop by-pass for 66 feet before it struck the diesel. He was traveling at the time he crashed into the engine 65 miles per hour. He was well acquainted with the by-pass and the railroad crossing. Under the city ordinance, in evidence, the speed of a motor vehicle on this by-pass is limited to 40 miles per hour.

By agreement exhibits 1 through 14 were offered by defendant and exhibit (A) was offered by plaintiff. Exhibits 1, 2, 3, 4, 6 through 14 are photographs. Exhibit 5 is a rough plat of the scene of the accident. Plaintiff’s exhibit (A) is a large plat of the scene of the accident and Highway EE prepared by a civil engineer.

Plaintiff principally relied upon members of the train crew as her witnesses. Highway Patrolman, Frank Sheible, was called by defendant. He arrived at the scene of accident a few minutes after the collision.

This appeal is limited to the sole question of the alleged error of the trial court in failing to direct a verdict in favor of defendant and in failing to sustain defendant’s after-trial motion for a judgment notwithstanding the verdict.

Witnesses Bill Meredith and his wife testified that they are residents of Kennett; that on the night Homer Reames was killed they were driving south in a pickup truck on Highway EE and crossed the railroad tracks as defendant’s train was approaching the crossing. Mr. Meredith was driving and his wife was sitting in the front seat on the right side. Meredith testified that as they crossed the tracks the train was approximately 300 yards back to the east of the highway; that they went south to the intersection of Washington Avenue where they turned off; that the distance from the defendant’s tracks to Washington Avenue was approximately one-half mile. He gave this testimony:

“Q. Now, after you crossed the railroad tracks did you meet any other cars? A. I met one car.” He testified the car he met was traveling north; that at the time he met it it was about a quarter of a mile from the railroad crossing; that witness was traveling about 30 miles per hour, the weather was cool and visibility good.

Mrs. Meredith testified that she was with her husband the night Homer Reames was killed; that when they crossed the railroad tracks she saw the Frisco train back toward Emerson Electric; that when they were about even with the white house south of the concrete plant on the right the train was going across the highway; that after the train had crossed it they met a car going north about at the next house, a red brick; that was the only car they met before they turned off Highway EE. She said the red brick was the second house from the concrete plant on the right side.

On cross examination the witness testified that in her best judgment her husband’s statement that the train was some 300 yards east when they crossed the tracks was wrong; that at the time they crossed the tracks, the train was moving. She testified that she looked back when they were at the white house and she had no difficulty in seeing the train; that she imagined the white house was about 700 feet from the crossing.

Mr. Meredith was recalled and testified that the lights were burning on the car he met going north toward the railroad crossing. He did not know what kind of car it was or how fast it was going. He testified it was about a quarter of a mile from the crossing when they met it; that he could not tell how many people there were in the car.

G. R. Wicker testified for plaintiff that his occupation was a civil engineer and he lived in Cape Girardeau; that he is the Dunklin County Surveyor and County Highway Engineer. He testified that he made a survey of Highway EE with reference to the railroad crossing on April 1, 1961, and prepared a plat which is in evidence as plaintiff’s exhibit (A). His testimony is that he measured the distance from the first white house south of the intersection on the west side of Highway EE which was 788.6 feet; that the second house south, the brick house, is 215.80 feet south of the white house; that the distance from Washington Avenue to the intersection was 2,-721.20 feet; that the width of the highway at the point it intersects the south rail of the railroad track was 19.6 feet. Witness testified that the sight distance or diagonal line from the railroad intersection south on Highway EE is 1496.50 feet; that Highway EE is blacktopped; that it is approximately 375 feet from the railroad crossing to the beginning of the curve to the south on said highway; that there was nothing to obstruct one traveling on the highway from seeing the crossing.

Ryan testified: “Q. Now, during the time this engine was stationary there, in which direction were you looking? A. I was looking to the west.”

He testified that as the train was approaching the crossing he looked to the south but while the train was temporarily stopped on the crossing he never looked to the south until he heard the tires squeal on the pavement.

The issue of inadequacy of damages raised by plaintiff in case No. 8040 is moot if the court finds for defendant in appeal case No. 8041, to-wit, that plaintiff failed to make a submissible case on the theory of humanitarian negligence. Therefore, we deem it proper to first render judgment in case No. 8041.

In this case plaintiff’s contention is that defendant’s engineer saw and knew, or could have seen and known, that Homer Reames was in a position of imminent peril and was oblivious thereto in time thereafter, by the exercise of ordinary care and with the means at hand and with reasonable safety to the equipment of said train and the persons thereon, to have sounded a warning that Highway EE was blocked by defendant’s engine and that such warning, if given, would have been sufficient to cause deceased to have avoided running into the side of defendant’s engine; that the engineer failed to sound a warning and was thereby negligent.

Our review of the submissibility of plaintiff’s case on this theory requires that we review the evidence in the light most favorable to plaintiff, and give the plaintiff the benefit of all reasonable inferences arising therefrom and disregard defendant’s evidence unless it aids plaintiff’s case. Kirks v. Waller, Mo.Sup., 341 S.W. 2d 860, 863 [2, 3]; Daniels v. Smith, Mo.Sup., 323 S.W.2d 705, 706 [2]; Fenneren v. Smith, Mo.Sup., 316 S.W.2d 602, 606. Favorable consideration of the evidence rule calls for a consideration of all the facts shown by plaintiff, not merely part of them isolated from the rest. Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726, 727 [1]; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135. And it does not require courts to supply missing evidence, or disregard the dictates of common reason and accept as true that which obviously, under all the record, is not true, or to give plaintiff the benefit of any other than reasonable inferences. Kirks v. Waller, supra, page 863 [2, 3] (and see authorities cited therein).

Plaintiff must remove her case from the field of speculation, conjecture or surmise. Hartlage v. Halloran, Mo.App., 331 S.W.2d 197 [1],

The humanitarian rule seizes upon a factual situation as it exists at the time defendant knew or should have known that plaintiff was in a position of imminent peril. Carney v. Stuart, Mo.Sup., 331 S.W.2d 558, 562 [4-6]. It is well settled that no duty on a defendant to act arises until plaintiff is actually in a position of imminent peril, and that when plaintiff is in a position of imminent peril is a question for the jury under all the evidence. Price v. Nicholson, Mo.Sup., 340 S.W.2d 1, 10 [6]; Harrington v. Thompson, Mo.Sup., 243 S.W.2d 519. There must he substantial evidence from which the jury may make this determination.

In the instant case to show zone of obliviousness, it is incumbent on plaintiff to make proof of facts tending to show obliviousness, not only to establish that deceased was in a position of imminent peril, but to bring home to defendant the knowledge of the peril. Cunningham v. Thompson, Mo.Sup., 277 S.W.2d 602.

In Zickefoose v. Thompson, 347 Mo. 579, 148 S.W.2d 784, 791 [10-11] (cited by both parties) the law is stated:

“ * * * ‘no duty whatever arises under that doctrine, unless and until a situation of peril comes into existence;’ and ‘when such peril arises the doctrine seizes upon the situation as it then exists and requires the one operating the dangerous instrumentality to exercise ordinary care * * * to make timely discovery of the peril, if it was his duty to be on the lookout, and thereafter to avoid the infliction of the threatened injury, if he can do so with the means at hand and without jeopardizing the safety of himself and others.’ * * *

“Now in this case, since the engineer, conductor and brakeman Haefer were in places where they could not and did not know of deceased’s peril, they had no present ability to save him. * * * the fact remains that Davidson was under no duty to leave his position or disregard his duties and let the train run wild. We think he acted properly in keeping his eyes on his work.”

However, in that case, the fireman did actually see the truck approaching the crossing. He testified it was not going extremely fast but did not diminish its speed before it struck the box car. He called the engineer’s attention to the approaching truck after the engine started to back up showing that he thought the situation was perilous. No warning signal was given.

Ordinarily, the presence of a train upon a public road crossing constitutes adequate notice to the travelers that the crossing has been preempted, and a railroad is not guilty of negligence in blocking crossings without providing additional warning, unless special circumstances make the crossing peculiarly hazardous, and burden of showing such special circumstances rests upon plaintiff. Allinson v. Missouri-Kansas-Texas Railroad Company, Mo.App., 347 S.W.2d 902, 905 [1]; Albertson v. Wabash Railroad Co., 363 Mo. 696, 253 S.W.2d 184, 187 [1]; Zickefoose v. Thompson, supra; State ex rel. Thompson v. Cave, 358 Mo. 414, 215 S.W.2d 435, 436 [1].

The decisive questions presented in this appeal are when did deceased come into a position of imminent peril and what could defendant have done thereafter? The zone of imminent peril is always widened beyond the immediate path of a moving vehicle by the obliviousness of a person approaching its path. Crews v. Kansas City Public Service Co., 341 Mo. 1090, 111 S.W.2d 54, 57 [2], This zone commences and the duty of a driver of a moving motor vehicle begins when he saw, or could have seen by the exercise of the highest degree of care, that the person approaching the path of his vehicle was oblivious to the dangers and was intent on continuing across his path. Homan v. Missouri Pacific R. Co., 334 Mo. 61, 64 S.W.2d 617. It was the duty of defendant’s agents to act on reasonable appearances of obliviousness at a time when action would be effective. Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368. However, the zone of imminent peril is much narrower when the approaching person is not oblivious or shows no reasonable appearances of obliviousness. Under such circumstances, “the duty of such operator to act does not commence until such person is actually in its path or so close to it that it is apparent (at the rate of speed and manner he is moving) that he will not stop before reaching it”. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, 53. “In the absence of obliviousness, the position or danger zone of imminent peril of a person approaching the path of a moving vehicle reaches no farther beyond the direct path of such moving vehicle than the distance within which such approaching person is unable by his own efforts to stop short of it”. Lotta v. Kansas City Public Service Co., 342 Mo. 743, 117 S.W.2d 296, 300; Yeaman v. Storms, 358 Mo. 774, Banc, 217 S.W. 495; Findley v. Asher, Mo.Sup., 334 S.W.2d 70, 72 [2-4].

Humanitarian doctrine does not impose any duty upon one to act until the situation of imminent peril arises and obliviousness to peril is constitutive element of humanitarian case based upon the failure to warn. Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785; Hampton v. Raines, Mo.App., 334 S.W.2d 372, 375; Beckwith v. Standard Oil Co., Mo.Sup., 281 S.W.2d 852; Dister v. Ludwig, 362 Mo. 162, 240 S.W.2d 694.

Defendant denies plaintiff’s theory and urges that the evidence was wholly insufficient to authorize a submission of the case to the jury on humanitarian negligence since there was no proof that the engineer actually saw the deceased in a position of imminent peril and oblivious thereof in time to have given a timely warning.

We find from the evidence that plaintiff failed to make a submissible case upon either the theory of plaintiff or the theory of the defendant. This was a jury-tried case and the verdict and judgment must be sustained if there is substantial evidence to support it. In other words, there must have been substantial evidence from which the jury may make the determination that plaintiff was in a position of imminent peril and oblivious to his danger and that defendant saw or should have seen such obliviousness in time to have sounded a whistle which would have been effective in avoiding the collision.

The evidence offered is not in dispute. On the date of the collision between the automobile of deceased and defendant’s engine, which occurred after dark, about 7:32 P.M., the engine was momentarily stopped blocking the crossing of the highway on which the deceased was traveling. The road for some 375 feet south of the crossing was straight and level and from there on south there was a slight curve but nothing to prevent deceased from seeing the engine across the highway. There was no evidence as to the speed of deceased’s car except when it collided with the engine. There was evidence offered by plaintiff that the headlights on deceased’s car were burning. Plaintiff offered no evidence as to the distance in which deceased could have stopped his car before striking the engine. The only evidence as to the time deceased saw defendant’s engine was that the car left skid marks 66 feet long before it hit. Defendant’s engineer testified for plaintiff that he was in the fireman’s seat on the south side of the engine; that neither he or the fireman on the north side could have reached the cord to sound a whistle without moving from their seats. He testified that the train crew was preparing to put a car on the spur track at the Kennett Concrete Company west of the highway; that they had to switch the car ahead of them “what we call make a drop” and that he was looking to see if this car in the Ken-nett Concrete Company was in the clear so they could put the engine in there without striking the car. He testified that he did not see the approaching car of the deceased until he heard the squeal of the wheels as the brake was applied; that no signal was given. There is not the slightest evidence from which reasonable men could find that had defendant’s engineer been looking to the south he could have determined that the deceased was oblivious to his danger in time to have sounded the whistle of warning which would have been effective. This was a blacktop road. Deceased’s lights on the car were burning. We think the only inference from this evidence would be that the engineer could not have seen deceased even though under the law he had to act on appearances. Obliviousness was an essential element of plaintiff’s case which must be shown by substantial evidence. We find she wholly failed to offer any evidence showing obliviousness.

Under the defendant’s theory the presence of the train upon a public road or crossing constituted adequate notice to the travelers thereon that the crossing had been preempted and that while defendant’s engine was momentarily blocking the road there was no further duty requiring defendant to give a warning to deceased traveling on the road unless the engineer saw or had actual knowledge of the deceased approaching said crossing.

The law in Zickefoose v. Thompson, supra, supports this contention. On page 791 [10, 11], it is stated:

“ * * * ‘no duty whatever arises under that doctrine, unless and until a situation of peril comes into existence;’ and ‘when such peril arises the doctrine seizes upon the situation as it then exists and requires the one operating the dangerous instrumentality to exercise ordinary care * * * to make timely discovery of the peril, if it was his duty to be on the lookout, and thereafter to avoid the infliction of the threatened injury, if he can do so with the means at hand and without jeopardizing the safety of himself and others.’ * * *

“Now in this case, since the engineer, conductor and brakeman Haefer were in places where they could not and did not know of deceased’s peril, they had no present ability to save him. * * * the fact remains that Davidson was under no duty to leave his position or disregard his duties and let the train run wild. We think he acted properly in keeping his eyes on his work.”

In the instant case while defendant’s engine was momentarily stopped, the engineer was engaged in carrying out the duties of spotting a car for some 15 to 25 seconds. Since the stopping of the engine across the highway is under the law permitted and since there is no duty imposed upon the defendant to give further warning, we think the engineer was not required to keep a constant watch to the south and disregard his duties in spotting the car on the spur track. Under this theory the defendant was not required to look, and, therefore, plaintiff failed to make a submissible case.

We find that the trial court erred in failing to sustain the defendant’s motion for a directed verdict and its after-trial motion for judgment notwithstanding the verdict.

Judgment reversed with directions that judgment of the trial court be set aside and judgment entered for the defendant in case No. 8041.

Appeal case No. 8040 is without merit under our finding in case No. 8041. Judgment in this case is for the defendant. So ordered.

RUARK, P. J., concurs.

STONE, J., concurs in result.


author: RUARK, Presiding Judge.

text:
    In the Matter of the ESTATE of George W. BAKER, Deceased. Roy BAKER, Petitioner-Respondent, v. Alta BAKER, Administratrix, Defendant-Appellant.
    No. 8038.
    Springfield Court of Appeals. Missouri.
    July 20, 1962.

      Sharp & Hatley, William B. Sharp, Malden, for defendant-appellant.
    Riddle, Baker & O’Herin, Malden, Bock & Jones, New Madrid, for petitioner-respondent.
   RUARK, Presiding Judge.

This is an appeal by the administratrix-defendant from an adverse judgment rendered in a discovery proceeding.

In 1955 George W. Baker died intestate, leaving his widow, Alta, and various children, including sons Roy and Clifford. The widow was appointed administratrix. The inventory shows a quantity of real estate but no personalty.

On August 8, 1960, the son Roy, whom for convenience we will refer to as the petitioner, filed amended affidavit charging the administratrix with withholding and concealing certain personal assets and praying that citation be issued to compel her to answer questions under oath. We do not find the citation in the files, but the record shows it was issued returnable October 25. Upon disqualification of the probate judge, the matter was transferred to the circuit court.

On November 22 the cause was set for trial on January 10, 1961. Thereafter, on the same day (November 22), defendant-administratrix filed answer which was in effect a general denial of the petitioner’s affidavit. Thereafter (still November 22) the petitioner filed interrogatories. The interrogatories with which we are now concerned dealt with (a) a note from J. E. Hollcroft and Myrtle Hollcroft to George Baker, dated January 4, 1951; (b) a bank account at the State Bank of Bernie; and (c) an automobile.

On January 10, 1961, the parlies appeared before the court. No answers to the interrogatories had been filed, but the court proceeded to hear evidence. Concededly no one asked for a jury. The petitioner put into evidence an instrument entitled “Vendor’s Lien Note” given at Weslaco, Texas, on January 4, 1951, and payable at the First National Bank of Weslaco. Said note was given by J. E. Hollcroft and Myrtle Hollcroft, who therein promised to pay to G. W. Baker $10,500, in monthly installments of $75, and stated the note was given as part payment for certain land (legal description set forth) in Hidalgo County, Texas, which land was “this day conveyed to the undersigned, by G. W. Baker and wife, Alta Baker.” The note further recites that as further security a deed of trust is given concurrently therewith.

In reference to the bank account, petitioner called the cashier of the State Bank of Bernie, who produced under subpoena duces tecum the ledger sheets of a checking account headed “G. W. or Alta L. Baker,” commencing with a first deposit in the amount of $643.67, of date September 19, 1953, and continuing to February 20, 1958. He identified as records of the bank some nine deposit slips. The first one (September 9, 1953) reflected a deposit in the amount of $643.67 to the credit of “G. W. Baker or Alta L.” Another deposit receipt dated September 29, 1953, showed a deposit of $1500 made in the same manner. The following receipts simply reflected deposits by “G. W. Baker.” The witness testified that when the account was opened, G. W. Baker appeared in person with his wife, Alta, and a card was made out. Both of them (husband and wife) had to sign the card. He said that he opened the account for them himself and that the initial deposit slip was in his (the cashier’s) handwriting. (Although he was not asked about it, each of the following deposit slips appears to be in the same handwriting.) The witness obviously understood and was of the opinion that this was a “joint” account. He repeatedly referred to it as such. When asked to explain why the deposit slips following the first two were made out in the name of “G. W. Baker” only, he said, “It is not necessary to show it, the two after you have a joint account established.” Referring to the custom of the bank, “After we open a joint account and the original deposit slip is the only one that is necessary to show it, and G. W. or Alta Baker and — ” (interrupted by objection). “The original must show it and it is G. W. or Alta and it is posted to the ledger account and the ledger account will show it too, and then any deposits thereafter — any bank will tell you that you don’t have to show the two, but it is posted to that joint account, G. W. or Alta L. Baker.” “Yes, sir, it is our practice.” He said that the account in question was the only one which G. W. or Alta Baker had in the bank; that all deposits went into that one account; that he (or the bank) never did receive instructions to put any money in any other account.

As to the signature card, the witness' said it had been mislaid in the bank and he had been unable to find it, so he could not produce it. He did not say, and nobody asked him, what the missing card contained, whether it contained a survivorship provision, a tenancy in common arrangement, a tenancy by entirety clause, a mere permission to check, or what. Nor was he asked to produce the form of card which was signed.

Defendant-administratrix then took the stand and identified as Exhibit 1 an original deed of conveyance of date May 29, 1945, wherein were conveyed to “G. W. Baker, and wife, Alta Baker,” of Hidalgo County, Texas, the identical lands described in the vendor’s lien note hereinbefore mentioned. After the witness had identified the deed, the petitioner objected, “I object to that, to this witness testifying to a contract to which G. W. Baker was a party, and he is now dead.”

Thereafter the administratrix was handed defendant’s Exhibit 2, which was a deed of trust given by J. E. Hollcroft and wife, Myrtle Hollcroft, of date January 4, 1951, the same date as the vendor’s lien note aforementioned, to secure an indebtedness to “G. W. Baker and wife, Alta Baker.” The deed of trust described the note aforementioned and conveyed the same land. The administratrix testified that the note therein described was the same as petitioner’s Exhibit A. Thereupon petitioner objected “for the reason G. W. Baker is a party to that instrument and is now dead.” The objection was overruled and defendant then offered the whole exhibit. Upon such offer no ruling was made, but the witness interposed, “That is what the lawyer said, it didn’t make a bit of difference in the world in Texas.” That was objected to on the ground it was not responsive and was a conclusion, and there the testimony ended. There was no evidence pro or con in respect to the charge concerning the automobile. Thereupon the court took the matter under advisement.

On March 7, 1961, the petitioner, Roy Baker, filed a brief. This evidently set the administratrix’ attorney to thinking that he had better file answers to the interrogatories, and this he did on March 13, 1961. The substance of these answers was:

(a) The note from the Hollcrofts was owed to deceased and his wife jointly and since the death of G. W. Baker the amount paid on it was $4950.

(b) The account at the State Bank of Bernie was a joint account.

(c) Deceased owned no automobile. A "Plymouth automobile belonging to Clifford Baker was “listed” in the name of George W. Baker. Said automobile had been delivered to Clifford Baker. (The answer leaves in doubt whether or not the ad-ministratrix had had actual possession or control of the automobile.)

On April 25, 1961, the court filed a judgment which recited that Alta Baker failed to answer the interrogatories until after the hearing on January 10, 1961, “and filed same late without leave of court”; that on January 10, the trial date, the parties went to trial and neither required a jury; that at his death George W. Baker was the owner of the Hollcroft note and that the administratrix-widow had concealed and unlawfully withheld it; that at the time of his death George W. Baker was the owner of the bank account at the State Bank of Bernie in the amount of $5214.63 and that the administratrix-widow had withdrawn and concealed and unlawfully withheld it; that George W. Baker was the owner of a Plymouth automobile which administratrix had concealed and unlawfully withheld; that the administratrix had failed in her trust as administratrix and converted assets to her own use and was thereby removed as administratrix. In addition to removal, the administratrix was ordered forthwith to deliver the aforementioned property to a new administrator.

It is appellant’s first complaint that she was denied the due process of a trial of the issues. Her attorney contends that since the statute (V.A.M.S. § 473.343) provides the right of oral examination prior to interrogatories, she was justified in waiting to file answers to the interrogatories until that examination was had, and that she presented herself for such examination on January 10, 1961 (the date set for hearing).

It is the petitioner-respondent’s position that in failing to file answers to interrogatories by trial date the administratrix was in default. Although we are not certain, it would appear from the language of the judgment that the court took this view.

The procedures set up for discovery proceedings comprise a code of their own. Briefly, the statutes (V.A.M.S. §§ 473.340, 473.343, 473.347, 473.350) provide for the following steps:

(1) An affidavit is filed and citation is issued.

(2) The defendant may admit or deny the allegations of the affidavit.

(3) If defendant denies the allegations of the affidavit, the petitioner has the right to subject the defendant to oral examination.

(4) The petitioner files interrogatories.

(5) The defendant files answers to such interrogatories.

(6) Trial is had on the issues thus raised. Missouri Probate Law and Practice, Maus, vol. 4, § 876, et seq.; State ex rel. Lipic v. Flynn, 358 Mo. 429, 215 S.W.2d 446, 449.

As to the right of the petitioner to place the defendant under oral examination [(3) above], that provision is still carried in the statutory procedure (V.A. M.S. § 473.343), presumably because the examination may be an aid in framing the interrogatories. But the petitioner may waive this right. And it can be seen that he may wish to do so when the dead man’s statute (V.A.M.S. § 491.010) is involved. Maus, supra, § 877; In re Weingart’s Estate, Mo.App., 170 S.W.2d 972, 977. Although it might seem better practice to require the signification of this waiver by some sort of notice to court and counsel, we think the act of filing of interrogatories on November 22 was in and of itself a notice of such waiver and that defendant should have taken notice of this fact.

However, there is a more important consideration : Under the statutes and all of the decisions the issues are framed by the interrogatories and the answers thereto. In ex parte Fowler, 310 Mo. 339, 275 S.W. 529, 533, it was said:

“In the absence of an admission, then, there is no case until interrogatories are filed, and answer made thereto. Under the statute, it is then, and then only, that we have issues to be determined by a jury or by the court. * * * Absent triable issues, and a trial, the court is without power to enter a judgment or order. * * If an adjudication is made, and a judgment entered, it is a nullity. It is not due process of law.”

Unless, therefore, the defendant can be considered in default, no trial on the merits could have been had because the issues had not been made up.

But when should the answers to interrogatories be filed? What is the time limit? The statute fixes no time, and no case which we have found deals with that problem. It is our conclusion that, since the statute does not fix a time, it is the duty of the court to fix a time for answering. The court did not do so in this instance (nor did any citation so far as we can find in the record). Bearing in mind that the interrogatories and the answers thereto make up the issues, the court should be zealous that the parties are apprised of the time and occasion when the issues are to be made up. In re Waters’ Estate, Mo.App., 153 S.W.2d 774, 775.

Referring back to the statutes, if the defendant fails to file answers within the time limited, the court is not powerless. It can commit the defendant to jail until such answers are filed. (V.A.M.S. § 473.347) The situation, although not exactly similar, is somewhat analogous to a garnishment proceeding after judgment. In such a case, where the interrogatories had not been answered and judgment was taken, this court in Chenoweth v. La Master, Mo.App., 342 S.W.2d 500, held that the judgment rendered on a supposed default was improper and remanded the case for proper proceedings, this for the reason that the real issues contemplated by the proceeding had not been made up and heard.

It is our conclusion that the trial (of the issues?) and the judgment on the same was premature; that there was no real trial as contemplated by the statute; and hence the judgment must be reversed and remanded for a new trial.

Nor are we certain as to how the trial judge considered the belated answer. In respect to the automobile there was no evidence presented. If the court considered the answer as a pleading of that issue, the defendant should have been permitted to make proof on that issue. If he considered it solely as evidence, such was improper because it had not been offered in evidence. (See Covey v. Van Bibber, Mo.App., 311 S.W.2d 112, 115; Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132, 133). Since the case must be retried, we suggest that since the answer shows that legal title to the automobile was in the deceased, the burden is squarely upon the administratrix to prove the affirmative, viz., that the defendant actually had no beneficial interest therein. Alimon v. Alimon, Mo.App., 306 S.W.2d 651, 654.

As to the bank account:

Whether a deposit in two names is a joint tenancy or a tenancy by the entirety usually depends upon the intention of the parties. Whether the deposit is made in husband and wife or in husband or wife does not seem to be the controlling factor. In Longacre v. Knowles, Mo., 333 S.W.2d 67, it was held that in a relationship between uncle and nephew, where notes and bonds were “or,” the use of the disjunctive was incompatible with a joint tenancy. And in those cases where the deposit arrangement carries no provision for survivorship as provided in Section 362.470, V.A.M.S., a deposit in husband or wife creates no presumption of joint tenancy. Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079, 1081. On the other hand, a deposit arrangement in the form of the statute (providing for survivorship) raises a presumption in favor of the joint account. Melinik v. Meier, Mo.App., 124 S.W.2d 594, 597. And a deposit to husband or wife where the deposit or signature card shows right in the survivor raises a presumption of joint tenancy or estate by the entirety. Feltz v. Pavlik, Mo.App., 257 S.W.2d 214, 218; Hanebrink v. Tower Grove Bank & Trust Co., Mo.App., 321 S.W.2d 524. Of course, the estate by the entirety continues in personal property, and a deposit made to husband and wife, regardless of lack of the survivorship provision, will be presumed to be a tenancy by the entirety.

We would think that once a single deposit account has been established in a bank, in whatever form it might be, then in the absence of any evidence showing to the contrary, subsequent deposits made in the same bank, without indication of intention that they shall be considered or credited differently, would justify the inference that the depositor intended them to become a part of the account originally established.

As to the Hollcroft note:

Appellant says that a tenancy by entirety follows the proceeds of the sale of the Texas property. We would say that in the absence of evidence indicating a contrary intention by both parties a tenancy will be presumed to follow the proceeds of the sale of entirety property.

Respondent says that the defendant did not prove an entirety in the land because the deed which showed title in the husband and wife was identified in violation of the dead man’s statute. In that connection we note that the objection to such identification came after the witness had answered. There was no claim that the answer came too fast to permit opportunity to object, nor was there any request to strike such testimony. (See Hamiltonian Federal Savings & Loan Ass’n v. Wendling, Mo.App., 199 S.W.2d 29, 33; see also Stephenson v. Stephenson, 357 Mo. 8, 171 S.W.2d 565, 568)

Both parties ignore the question of whether there was an original entirety and the question of whether or not such note had a fixed legal status in regard to interest and ownership when it was brought into this state. No attention is paid to the question of whether the Texas community property law is applicable.

It is not the duty of the appellate courts to brief the cases for the litigants’ attorneys. In this opinion we have attempted to point out some procedures and some of the phases of the law which may be applicable or might be involved on a retrial of this case, in the hope it will be of some assistance. All we can say is that if counsel wish to sit on their assurance and rely upon “presumptions” and fail to produce evidence when such is readily available, they run the risk of rendering a disservice to their clients.

The judgment is reversed and remanded.

McDOWELL and STONE, JJ., concur.

      . Missouri Probate Law and Practice, Maus, vol. 4, § 878; Maynard v. McClellan, 236 Mo.App. 352, 156 S.W.2d 770, 773; Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28, 32; Alimon v. Alimon, Mo.App., 306 S.W.23 651, 654; Covey v. Van Bibber, Mo.App., 311 S.W.2d 112, 113; In re Decker’s Estate, 348 Mo. 32, 152 S.W.2d 104; In re Weingart’s Estate, Mo.App., 170 S.W.2d 972, 977, 978.

      . 7 Am.Jur., Banks and Banking, §§ 425, 426, pp. 299-301; Banks and Banking, Michie, vol. 5A, ch. 9, § 46, p. 115; 64 A.L.R.2d, § 31, p. 80; Longacre v. Knowles, Mo., 333 S.W.2d 67, 70; Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079. 1081; Tates v. Richmond Trust Co., Mo.App., 220 S.W. 692, 693; Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081, 1082; Ray v. Ray, Mo.App., 336 S.W.2d 731, 737; see Dalton v. American National Bank, Mo., 309 S.W.2d 571, 579.

      . See also Princeton State Bank v. Wayman, Mo.App., 271 S.W.2d 600; Hilke v. Bank of Washington, Mo.App., 251 S.W. 2d 963 (4); but compare Conquerer Trust Co. v. Craig, 204 Mo.App. 650, 218 S.W. 972, 973(1).

      . State Bank of Poplar Bluff v. Coleman, 241 Mo.App. 600, 240 S.W.2d 188, 190; Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081, 1082; Cullum v. Rice, 236 Mo.App. 1113, 162 S.W.2d 342, 344.

      . Schwind v. O’Halloran, 346 Mo. 486, 142 S.W.2d 55, 59; Bay v. Bay, Mo.App., 336 S.W.2d 731, 737; Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28, 37, 77 A.L.R. 782; Johnson v. Johnson, Mo.App., 268 S.W.2d 439; Feltz v. Pavlik, Mo.App., 257 S.W.2d 214, 219.

      . See V.A.T.S., civil statutes, Art. 4619, and annotations at notes 6, 7, 9, 120, 122 ; Art. 2578; Texas Probate Code, §§ 45, 46, V.A.T.S.


text:
    STATE of Missouri ex rel. Rice FARMER, Administrator of the Estate of Clarence V. Norman, deceased, Relator, v. Honorable Emery W. ALLISON, Judge of the Circuit Court of Pulaski County, Missouri, Respondent.
    No. 8089.
    Springfield Court of Appeals. Missouri.
    July 26, 1962.
    J. W. Grossenheider, Lebanon, for relator.
    T. A. Shockley, Waynesville, Claude T. Wood, Richland, B. H. Clampett, Springfield, for respondent.
   RUARK, Presiding Judge.

This is prohibition. Since our initial question is one of res judicata or estoppel by judgment, a recounting of some history is necessary.

On May 27, 1958, Harold Fellows was (it is alleged) fatally injuted while riding in an automobile driven by Clarence V. Norman, who died on the same date. The widow of Fellows desired to sue the estate of Norman, but no letters of administration had been-issued on such estate. On May 9, 1959, one Rice Farmer (not of kin) presented application for letters. The application named, as those interested, a widow and child. On May 11, 1959, the court, without citation to persons entitled to administer, and acting upon information that the widow was a nonresident, granted letters to Rice Farmer.

Widow Fellows then filed suit for damages in the circuit court, and Farmer as administrator was served.

On June 5, 1959, attorneys representing the administrator in the suit for damages filed a direct attack in the probate court by motion to set aside the order appointing Farmer as administrator and praying for revocation of such letters. ■ The ground for the attack was that the probate court had no jurisdiction to grant the letters because of failure to comply with the provisions of Sections 473.020, 473.110, and 473.113. Specifically, the question was whether the probate court had made a finding that the widow (who otherwise was entitled to administer) was a nonresident.

The probate court overruled the motion to revoke. The case went to the circuit court on appeal, which affirmed the judgment of the probate court. The case was appealed to this court, and in In re Norman’s Estate, Mo.App., 347 S.W.2d 908, 909, this court affirmed the circuit court. It may be said parenthetically that in the reasoning of that opinion attention was called to the fact that the movants did not introduce the records of the probate court to show whether or not a finding of nonresidence of the widow had been made.

Be that as it may, the judgment overruling the motion and refusing to revoke the letters was affirmed without qualification and that became final.

Now as to this case: After the mandate following affirmance of that judgment had been filed, the relator filed, in the damage suit in circuit court, a motion to dismiss the action on the ground that the appointment of the administrator was void because the probate records showed that there had been no judicial finding that the widow was a nonresident; hence the person named as administrator had no right to maintain-the action. A hearing was had on this-motion and, subject to the objection of the plaintiff in that case, evidence was received. In that hearing relator put into evidence all of the records of the probate. court.

Upon the indication of the circuit judge-that he intended to overrule such motion to-dismiss and proceed with the damage suit, the relator applied for and we issued a preliminary writ. Both in his suggestions-opposing the issuance of the writ and in his answer, the respondent raises the question of res judicata.

We are of the opinion that respondent is correct. The parties are the-same. The issue is the same. The question involved in the direct attack by motion to revoke was whether the appointment was void for the reason there was no-finding that the person having first right to-administer was not qualified. That is the exact question involved in this case. The-only difference in the two is that in the-present case the movant offered more evidence than he did in the first case.

The general principle announced’ in numerous cases is that (except where-the remedy itself has been misconceived) a. right, question, or ultimate fact distinctly-put in issue, or necessarily involved, and directly determined by a court of competent-jurisdiction, cannot be disputed or again-litigated in a subsequent suit between the-same parties or their privies. The question, once so determined, must be taken as-conclusively established. Whiteley v. Whiteley, Mo.App., 325 S.W.2d 502, 505; Boggiano v. Thielecke, Mo.App., 326 S.W.2d 386, 391; Se-Ma-No Electric Cooperative v. City of Mansfield, Mo.App., 321 S.W.2d 723, 729; Graham v. Kirchner, 365 Mo. 806, 287 S.W.2d 830, 833; Veal v. City of St. Louis, 365 Mo. 836, 289 S.W.2d 7, 13; Ratermann v. Ratermann Realty & Investment Co., Mo.App., 341 S.W.2d 280, 290-291. The estoppel applies not only to those issues of ultimate fact which were actually litigated but also to those which might have been litigated in the former action. Reis v. La Presto, Mo., 324 S.W.2d 648, 652; Abeles v. Wurdack, Mo., 285 S.W.2d 544, 546; Ezell v. Ezell, Mo.App., 348 S.W.2d 592, 596.

We are of the opinion that the preliminary writ was improvidently issued and should be quashed. It is so ordered.

McDOWELL and STONE, JJ., concur.

      . Relator contends that these records affirmatively show there was no finding of incompetency of persons first qualified to administer (specifically there was no finding the widow was a nonresident). Respondent contends with equal vigor that the records, coupled with presumption of right action, show exactly the opposite. For the purpose of consideration of the first and essential question of estoppel by judgment, we do not further concern, ourselves with this perplexing problem.


text:
    Francis VANCE and Dolly Vance, Plaintiffs-Respondents, v. STOUT’S TURKEY HATCHERY, INC., a Missouri Corporation, Defendant-Appellant.
    No. 8072.
    Springfield Court of Appeals. Missouri.
    July 11, 1962.

      Claude T. Wood, Richland, John A. Honssinger, Lebanon, for appellant.
    Donnelly & Donnelly, Lebanon, Cohn & Lentz, Waynesville, for respondents.
   McDowell, judge.

This is an action by plaintiffs against defendant to recover the balance due for turkey eggs sold and delivered to defendant during the turkey season beginning October 28, 1958, and ending March 1, 1959. Suit was filed in the Circuit Court of Pulaski County, Missouri, and thereafter transferred on change of venue to the Circuit Court of Laclede County where it was tried by the court (jury waived) and judgment rendered for plaintiffs in the sum of $3,531.75. From this judgment defendant appealed.

The petition alleged, inter alia, that plaintiffs sold and delivered to the defendant turkey eggs, as set out in paragraph 2, consisting of 32 items of sales. Each item bearing the date, number of eggs sold, delivered and accepted by defendant for the price agreed thereon, and prayed for the balance due on said sales in the sum of $4,833.84.

In paragraph 3, it is alleged that sales items 1, 2, 3, 4, 5, 6, 8, 9, 25, 28, 30, 31, and 32, as contained in the schedule in paragraph 2, were paid for by defendant in full before suit was instituted; that defendant had paid part of the amount due for sales numbered 19, 20, 21, 22, 23, 24, 26, and 27, and alleged there is still due and unpaid $3,531.75 for sales items 7, 10, 11, 12, 13, 14, 15, 16, 17, and 18. It was further alleged that plaintiffs were paid in full for all eggs delivered through November 18th, and for eggs delivered November 29th, December 1, 1958, February 7th and February 16, 1959.

The answer admits the delivery of the eggs to defendant, as alleged in the petition, and the payment made thereon but denies that it has failed and refused to pay plaintiffs for any amount for eggs set forth in sales 7, 10, 11, 12, 13, 14, 15, 16, 17, and 18 of the schedule in paragraph 2 of the petition and denies that there is any balance owed plaintiffs by the defendant for the value of said eggs in the sum of $3,531.75.

The only issue presented to this court is the value of the eggs described in the petition as items of sales numbered 7, 10, 11, 12, 13, 14, 15, 16, 17, and 18. On these items the trial court rendered judgment in favor of plaintiffs in the sum- of $3,531.75. The facts are not disputed that the eggs were delivered by plaintiffs to the defendant between November 25, 1958, and January 3, 1959.

Appellant states its position in its argument set out on page 18 of the brief as follows:

“ * * * It is the position of Appellant that witness Stanley Traw was an agent for Respondents and as such agent the agreement was consummated between Respondents and Appellant between Christmas, 1958, and New Year’s, 1959, which included the aforesaid sales items and under that agreement the price of the eggs included in said items was to be ascertained by the profit, if any, which might be realized from the birds produced from the eggs at their maturity. This agreement covered all of the eggs included in the aforesaid items for which recovery was allowed by the trial court.

“This agreement provided for an arrangement referred to in the turkey industry as ‘consignment’ or ‘egg pool’, whereby Appellant was to hatch the eggs, grow the poults to broiler or market stage, market the mature poults, and if a profit was realized, Respondents were fo be paid for their eggs in proportion to the net profit realized from the sale of the birds. If no profit was realized, “Respondents were to receive nothing for their eggs. Under this arrangement, Respondents incurred no obligation for the feed and other expense incident to the hatching, rearing and sale of the poults. The only risk the Respondents incurred under such arrangement was the loss of their eggs. * * * The uncontradicted evidence reveals that Appellant sustained a substantial loss on the transaction.

“Therefore, we assume it will be conceded by Respondents that if the agreement consummated near the end of the year 1958 covered the sales items for which the trial court allowed recovery, the Respondents were not entitled to recover. In other words, we take it that the trial court must have found that an agreement was consummated by Stanley Traw, acting as agent for Respondents, near the end of 1958. But, apparently, the trial court found that this agreement applied only to eggs delivered after January 3, 1959.”

The evidence offered by the parties on the issues presented is very conflicting.

Plaintiffs, residents of Camden County, in March or April, 1957, purchased a flock of Beltsville (white) turkeys from defendant, Stout’s Turkey Hatchery, Inc., a corporation. At the time of the purchase it was agreed that plaintiffs would sell the eggs produced from this flock to defendant, only. Pursuant to this agreement the eggs produced by plaintiffs in the season of 1957 and 1958 were sold and delivered to the defendant at a price of fifteen cents each. On October 28, 1958, plaintiffs began delivery of eggs to the defendant for the season of 1958 and 1959. Prior to the first delivery it was agreed that defendant would pay plaintiffs for the eggs delivered in 1958 and 1959 the same price as was paid in the season of 1957 and 1958. Defendant did not state how long he would pay this price.

From October 28, 1958, to March, 1959, plaintiffs delivered to defendant 33,143 eggs at a claimed price of fifteen cents each and 32,458 eggs at ten cents each. Defendant admitted the delivery of the eggs, as described in the petition. The only reservation or exception was as to the value of the eggs.

The first six deliveries of eggs in the year 1958, beginning October 28th through November 18th, consisted of 9,598 eggs. Defendant paid for these eggs at fifteen cents each by check dated December 20, 1958, in the sum of $1439.70.

Items 8 and 9, dated 11-29-58, and 12 — 1— 59, a total of 3,575 eggs were paid for by defendant at ten cents each, as shown by defendant’s check dated March 2, 1959, in the sum of $357.50. Plaintiff, Francis Vance, testified that he accepted and cashed this check before he realized he was only being paid ten cents an egg.

28,883 eggs contained in deliveries described in items 19 through 32, both inclusive, at practically ten cents each, were paid for by the defendant in two checks, one for $1177.70 dated May 5, 1959, and one July 31, 1959, in the sum of $1018.56.

Deliveries from November 25, 1958, to January 3, 1959, inclusive, being items numbered 7, 10, 11, 12, 13, 14, 15, 16, 17, and 18, amounted to 23,545 eggs, are in controversy. It is plaintiffs’ contention that these eggs were delivered to the defendant for a price of fifteen cents each and that there is due and unpaid for them $3,531.75. The judgment of the court was in favor of plaintiffs for this amount so, as stated in the statement of facts of appellant, it is obvious the trial court found that appellant was indebted to respondent for these eggs.

It is the position of appellant that it is not liable to respondents for these eggs until the poults are grown out and marketed and then only if appellant realized a profit from the sale thereof; that the arrangement under which these eggs were delivered was known in the turkey world as “consignment” or “egg pool”. There is no contention that appellant realized any profit. So the question to be determined under the issues presented is whether or not the eggs delivered to appellant from November 25, 1958, to and including January 3, 1959, were under an agreement of “consignment” or “egg pool”. We agree with appellant’s statement in its brief that the trial court found these eggs were not delivered under such an arrangement.

The consignment arrangement was not an issue before November 25, 1958. The appellant claims respondents were informed of the consignment agreement on that date.

Appellant testified that the notification of the consignment arrangement was given respondents orally. In Stout’s deposition he gave this answer: “I told them that the poult sales had completely quit, there wasn’t no sales for poults, and the only way I could accept the eggs would be consigned.” He stated this conversation was made in the Hatchery, he and Vance, alone, being present. He gave this answer: “He said that he didn’t think he could afford to deliver eggs then under that condition, and I said ‘Well, that’s the only way I can accept them’. * * * He asked me to sell the hens, yes.”

Francis Vance’s Testimony is that he talked with Mr. Stout prior to October, 1958, and they agreed on a price of fifteen cents per egg for the 1958-1959 season. He gave this testimony:

“Q. Now, did you again talk with Mr. Stout in November of 1958 about any change or modification of this agreement? A. I did not.
“Q. Did you talk with Mr. Stout around December 20th, 1958 about any proposed change? A. Yes.
“Q. What did he say? A. He said' that he couldn’t buy the eggs any longer,, that he didn’t have no sale for the poults- and he wanted the eggs but he didn’t want to pay for them, that he couldn’t pay for them until after the eggs was hatched and the poults grown out.
“Q. What did you say? A. I told him' that I couldn’t do that. I asked him to sell the turkeys.
“Q. What did he say? A. He said ‘it is too close to the holidays’, he says, T can’t sell them until after the first of the year, but I will sell them right after the first of the year’.”

He testified he continued to deliver eggs-after December 20th and the evidence is-undisputed that he made four deliveries after December 20th amounting to 7,905' eggs, the last delivery being January 3, 1959.

His evidence is that between Christmas, 1958, and New Year’s 1959, Stanley Traw, a merchant who sold plaintiffs feed for their turkeys, came to their home concerning a deal he had with Stout’s Turkey Hatchery; that Traw met with Stout and, after the meeting, came back and told' plaintiffs what they talked about; that Stout wanted the eggs and said he could sell everyone of them for ten cents apiece but that he wanted them to set himself. Traw agreed to feed plaintiffs’ turkeys under that agreement. Vance testified he never talked with Mr. Stout about the arrangement but he did agree to the arrangement which Traw conveyed to him from Stout. He gave this evidence:

“Q. You agreed to that. In other words, you agreed to accept 10 cents an egg, is that correct? A. From that time on.
“Q. And that would have been when, Mr. Vance? A. From the time that he started to feed these turkeys.
“Q. When was that, do you know? A. The 3rd of January.”

Witness testified that he never saw Mr. Stout very often but that he did talk to him when he tried to sell the turkeys in February. He stated that at that time Mr. Stout told him he wanted plaintiffs to keep the turkeys but they refused to do so. Defendant made arrangements to sell the flock in March, 1959.

The evidence is undisputed that after January 3, 1959, beginning January 10th, plaintiffs accepted ten cents an egg from the defendant. This deduction in price was brought about by a meeting between Stanley Traw and Stout. Traw took it upon himself to see Stout about plaintiffs' eggs. Plaintiffs did not know that Traw was going to do this. In the meeting between Traw and Stout, Stout stated that plaintiffs would be paid.

Stanley Traw testified: That in the fall of 1958 and spring of 1959, he was farming and in the feed business; that he was acquainted with plaintiffs and Carl Stout, President of Stout’s Turkey Hatchery. He testified:

“Q. Did you have a conversation with Mr. Carl Stout between Christmas of 1958 and New Years of 1959 concerning the Vance flock? A. Either — yes, sir, except it might have been right after the first of the year a day or two, I don’t know just the exact date; that is close.
“Q. What was the occasion for your going to see Mr. Stout concerning the Vance flock? A. I was investigating the deal with Francis Vance.
“Q. Did Mr. Vance know, — did you tell Mr. Vance that you were going to see Mr. Stout before you went to see Mr. Stout? A. I probably told him that I was going — I would go in and talk to him, it wouldn’t have made any difference.
“Q. What was said between you and Mr. Vance before you went to see Mr. Stout? A. Mr. Vance came to my place and told me what Stout had told him.”

Witness testified that Vance had told him that Stout said he couldn’t pay for any more than he had already paid for and would have to take them on consignment.

Traw testified that he said to Mr. Vance “Well, let me go back and talk with Carl” (meaning Mr. Stout) ; that he did go to Mr. Stout’s home and talked with him about the Vance breeder flock. After talking with Stout, Traw went back to Vance and told him exactly what Stout said and Vance was willing to go along with it. Vance admitted that he agreed to the terms that Traw mentioned when he came back after seeing Stout. Traw testified that Stout had said “that he' wasn’t afraid of this thing, but what it would straighten up”, and he said “I could get 10 cents an egg for the eggs, but I don’t want to take it”. Witness gave this answer: “A. He says, T don’t want to take that’. I says, ‘Well, Francis said if he wouldn’t have to pay the feed bill, if somebody would guarantee the feed bill why that would — I would go ahead and gather the eggs’ and I said ‘Well, I have sharpened my pencil, it will only cost 6¼ cents an egg to produce these eggs under present conditions’ and I said ‘if they are worth a dime that will leave you 3¾ cents and that is good pay for taking care of the flock and picking up the eggs.’

“Q. What did Mr. Stout say to that? A. Well, he said, ‘Well’, he would guarantee the feed bill if it was necessary and I said ‘Well, that is not necessary, I can take care of it, if you say that it is this good why we will go ahead’.”

Traw testified that defendant stated that plaintiffs would get paid for eggs delivered back in November and December.

Stout testified that in his conference with Mr. Traw he did not recall anything being said about paying for the eggs that had already been delivered.

In a deposition offered in evidence. Carl Stout testified that he was President of Stout’s Turkey Hatchery, Inc., in 1958 and 1959; that the eggs in question were delivered and accepted by the hatchery (as alleged in paragraph 2 of the petition) and that the only reservation or exception taken was as to the value of these eggs; that the value of the eggs delivered ceased to be fifteen cents per egg about November 25, 1958. He testified that after that time the eggs were worth what they could get for them; that turkey eggs are worth what you can sell the product that is produced from the eggs. He denied he made any agreement with plaintiffs as to the amount he would pay for the eggs in 1958 and 1959. He gave this testimony:

“Q. What was the understanding? A. That any part of the eggs that I couldn’t sell the eggs or poults therefrom would be hatched and grown out and they would be paid accordingly on the profit on the turkeys that was produced from those particular eggs.”

Pie testified that there never was any understanding when plaintiffs would be paid for their eggs. He said that went for all of the eggs delivered as described in paragraph 2 of the petition. He gave this answer: “Yes, until the product was sold at some figure.” He testified that he advised plaintiffs that he could only accept eggs by consignment November 25, 1958; that under consignment, the hatchery would finance the feed, grow the turkeys out and assume any loss that might occur above the eggs. He stated that the eggs delivered by plaintiffs to the hatchery before November 25, 1958, were paid for because he had the poults sold for those eggs before they were delivered.

Defendant offered evidence that the custom of the turkey business is that when turkey growers cannot sell the eggs instead of selling their breeder hens they take their eggs to the hatchery and the hatchery stands good for the feed and if any money is made from the poults, then the egg growers are paid out of the profit.

Under points and authorities appellant assigns as error that there was no substantial evidence to support the judgment because :

“(a) Stanley Traw, as the implied agent for respondents, negotiated a new agreement between appellant and respondents, under the terms of which and under the evidence in this case, respondents “were not entitled to recover any amount from appellant.

“(b) There was an agency by ratification and respondents ratified and accepted a new agreement made with appellant by Stanley Traw under the terms of which respondents were not entitled to recover any amounts from appellant.”

This is a court tried case. The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Civil Rule No. 73.01(d), V.A.M.R.; Section 510.310[4] RSMo 1959, V.A.M.S.; Zoglin v. Layland, Mo.App., 328 S.W.2d 718, 719 [1]; Parks v. Thompson, 365 Mo. 700, 285 S.W.2d 687.

It is appellant’s contention that a new agreement was consummated by Stanley Traw, acting as agent for respondents, between the parties near the end of 1958, which covered all the sales items for which recovery was allowed by the court and that under the terms of this new agreement the price of the eggs in question was to be ascertained by the profit, if any, which might be realized from the birds produced from the eggs at their maturity; that respondents are not entitled to recover for any amount.

Under sub-head (a) it is contended that Stanley Traw was the implied agent of respondents authorized to negotiate this new agreement.

Appellants cite Larner-Diener Realty Co. v. Fredman, Mo.Sup., 266 S.W.2d 689, 690; Wyler Watch Agency v. Hooker, Mo.App., 280 S.W.2d 849, 854; Hawkins v. Laughlin, Mo.App., 236 S.W.2d 375, 380; and Goodwin & McDowell Motor Co., Inc. v. St. Clair Auto Finance Co., Mo.App., 253 S.W.2d 543, 545.

These authorities properly declare the law as to implied agency, that is “The creation of the relation of principal and agent rests in the intention of the parties which may be express or implied, and need not be a conscious intention, but may be determined from the facts and circumstances of the particular case”. Larner-Diener Realty Co. v. Fredman, supra, 266 S.W.2d page 690[1, 2]. Agency may be implied from the acts, conduct and acquiescence of the principal. Goodwin & McDowell Motor Co., Inc. v. St. Clair Auto Finance Co., supra, 253 S.W.2d page 545 [1, 2]. A holding out of a person to act as an agent is entirely compatible with the theory of implied agency. Baker v. Aetna Casualty & Surety Co., Mo.App., 193 S.W.2d 363.

The relationship of agency does not depend in every instance upon an express appointment and acceptance, but is often to be implied from the words and conduct of the parties to the transaction. It is also true that agency need not be shown by direct evidence, but may be presumed or inferred from all the facts and circumstances. Hawkins v. Laughlin, supra, 236 S.W.2d page 380[2-4].

In the instant case we find from the evidence that there is no question but what a new arrangement for the purchase of eggs from respondents by appellant was consummated. The date of consummation is somewhat indefinite. We are sure that the trial court found that this arrangement was consummated January 3, 1959. Mr. Vance testified definitely to that fact. Witness Traw was not sure of the date he talked to Stout. He said it might have been a day or two after the first of the year and, of course, he had to go back and get the consent of respondents, which he did. Respondents testified that they agreed to the terms offered by appellant through Traw. We agree with respondents’ contention that even if Traw was the agent of respondents it could not effect the judgment for it is clear from the evidence that it was the judgment of the trial court that the eggs in question were not delivered under this new agreement.

Respondents testified that Traw took it upon himself to see Stout; that they did not know he was going to see Stout. He admits he told Traw about his conversation with Stout on December 20, 1958, wherein Stout said that they could not buy respondents’ eggs any longer but could only accept them on consignment and they had refused to deliver eggs on consignment; that Traw’s testimony as to respondents knowing about his seeing Stout is indefinite but Traw does say that he thought he might make something out of it. Admittedly, Traw came back to respondents and told them what Stout said.

Under the testimony we are of the opinion that the question of agency is immaterial in this case since it is admitted that respondents agreed to the new arrangement made between Traw and Stout and reported back to respondents by Traw. And, further, that under the finding of the trial court the eggs in question were not delivered under the new agreement.

The trial court’s judgment is certainly sustained as to all eggs delivered on and prior to December 20, 1958. The serious question presented to this court is the four deliveries made by respondents to appellant after December 20, 1958, which includes the January 3, 1959, delivery, consisting of 7,905 eggs.

We are not bound by the chancellor’s findings but review the evidence de novo and reach our own conclusion as to the weight and value. However, we usually defer to the chancellor’s findings when the cause turns upon the credibility, weight and value of the oral testimony of witnesses who have personally appeared before the trial court, unless we are satisfied that the findings should have been to the contrary. Middelton v. Reece, Mo.Sup., 236 S.W.2d 335, 341; Zoglin v. Layland, supra.

The facts are undisputed that the four deliveries of eggs made after December 20, 1958, were accepted by the appellant. Respondents testify that the new arrangement upon which appellant relies became effective January 3, 1959. Traw testified that in this conversation between himself and Stout, resulting in the new agreement, Stout not only stated that eggs delivered by respondents would be paid for at ten cents each, but testified that Stout, in that conversation, stated that respondents would get paid for the eggs they had already delivered. Stout, testifying for appellant, stated he did not remember that there was anything ever said about eggs which had already been delivered. This evidence, coupled with the admitted fact that respondents refused to deliver eggs on consignment and asked appellant to sell his turkeys, we think justifies the judgment of the trial court in finding that the new agreement, relied upon by appellant, did not apply to the delivery of the eggs in question and in rendering judgment for respondents for the eggs delivered between November 25, 1958, up to, and including, January 3, 1959.

Judgment affirmed.

RUARK, P. J., and STONE, J., concur.