author: HUNTER, Judge.

text:
    William P. GROSS, d/b/a Gross Auction Company, Respondent, v. MERCHANTS-PRODUCE BANK, a corporation, Appellant, Metal Goods Corporation, a corporation, Joseph T. Ryerson & Sons, Inc., a corporation, W. W. Grainger, Inc., a corporation, A. M. Castle & Co., a corporation, Frank A. Seested and Alice L. Seested, Josephine L. Dwyer, Respondents.
    No. 24184.
    Kansas City Court of Appeals. Missouri.
    April 5, 1965.
    Motion for Rehearing and for Transfer to Supreme Court Denied June 7, 1965.
    Application for Transfer Denied July 12, 1965.

      Achtenberg, Sandler & Balkin, (Bernard L. Balkin) Kansas City, for appellant.
    Casemore, Berman & DeLeve, Kansas City, amicus curiae.
    Morrison, Hecker, Cozad & Morrison, Kansas City, amici curiae.
    Downey, Sullivan & McCormick, Kansas City, for respondent.
   HUNTER, Judge.

This appeal presents an apparently simple question requiring a difficult but long needed answer. The question is where is the proper place for the filing or recording of chattel mortgages on chattels located in this state and owned by a resident of Jackson County who lives outside of Range 33 in Jackson County. The answer requires a construction of our relevant recording statutes governing the place of filing of chattel mortgages in Jackson County, Missouri.

The facts are stipulated. William L. and Margaret A. Hale, husband and wife doing business as Special Equipment Manufacturing Company, defendants, executed a chattel mortgage, dated December S, 1961, to secure payment of a promissory note for $11,474.00. Merchants-Produce Bank, appellant, was the payee and mortgagee. The chattel mortgage was filed of record in the Recorder’s Office in the Jackson County Court House at Kansas City on December 6, 1961.

The Hales were residents of Jackson County, Missouri, residing in Range 32. The subject property (equipment) presumably was located in Range 33 in Kansas City, Jackson County.

On March 13, 1963, the note was in default and demand had been made by Merchants-Produce Bank on the Hales for payment of the $2,607.25 unpaid balance. The bank and the Hales consented in writing to a contract by the Hales with Gross Auction Company for the sale of equipment covered by the chattel mortgage, providing that Merchants-Produce Bank would be given a sufficient amount of money from the proceeds to liquidate the unpaid balance, ahead of any and all other liens.

On March 21, 1963, William P. Gross, plaintiff, conducted an auction sale of the property described in the chattel mortgage and the proceeds of the sale, after the deduction of 15% commission, amounted to $2,-926.50. While this amount was in the hands of plaintiff, certain garnishments in aid of judgments against Hale d/b/a Special Equipment Manufacturing Company were issued and served on him by defendants W. W. Grainger, Inc., for $173.84 plus costs; by Joseph T. Ryerson & Sons, Inc., for $1,503.76 plus costs; by Frank A. Seested and Alice L. Seested and Josephine L. Dwyer for $1,311.50 and costs; by Metal Goods Corporation for $471.61 and costs; and by A. M. Castle & Co. for $1,472.10 and costs. Plaintiff interpleaded these defendants, all of whom asserted claims as mentioned.

The trial court ruled that the chattel mortgage of Merchants-Produce Bank was not properly filed, finding in essence that Section 59.163 of the recording statutes requires the filing in Range 32, the residence of the Hales. Judgment was accordingly rendered that the funds plaintiff had deposited with the circuit clerk be paid over to defendants in named amounts, after payment of court costs and a $450.00 attorney’s fee. This appeal followed.

Respondents present several contentions apart from the merits of this suit/ Noting that the judgment in the trial court was entered July 23,1964, and that appellant filed its notice of appeal on August 27, 1964, respondents state Civil Rules 82.04 and 82.05, V.A.M.R. require where there is no motion for new trial that notice of appeal be filed not later than 10 days after entry of judgment or with leave of court within 30 days after entry of judgment. We find no merit in this contention. Civil Rule 82.04 provides. “* * * [n]o such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. * * * ” Civil Rule 82.05 (a) provides, “For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for a new trial is filed. * * * ” The instant judgment entered on July 23, 1964, became final 30 days thereafter, on August 22, 1964. The notice of appeal filed on August 27, 1964, was filed within 10 days after the judgment became final.

Respondents further contend appellant has not preserved its allegations of error for appellate review because it failed to present to the trial court any error in a motion for new trial, citing Civil Rule 79.03 and Arnold v. Fisher, Mo.App., 359 S.W.2d 602. We find no merit in this contention. The case was tried to the circuit judge without a jury. The only evidence was a written stipulation of facts, including a number of documents. Civil Rule 73.01 (d) concerning cases tried upon the facts without a jury provides that on review on appeal, “The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court. The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature.” And Civil Rule 79.03 concerning allegations of error that'must be presented to the trial court in a motion for new trial specifically excepts from such requirement, “* * * questions of the sufficiency of the evidence to support the judgment in cases tried as provided by Rule 73.01 * * The sole question of law presented to the trial court; namely, was the chattel mortgage in question filed at the proper place as provided by statute, and the trial court’s judgment that it was not properly filed, is before us on appeal for our determination as to whether the evidence supports the judgment. If the evidence does not support the judgment it is our duty to enter the proper judgment or cause it to be entered. See Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189(1) ; Gower v. Lamb, Mo.App., 282 S.W.2d 867.

Respondents’ third contention is that appellant in authorizing William Hale to contract for the sale of items covered by the chattel mortgage-permitted Hale to dispose of items covered by the chattel mortgage and retain the benefits, thereby waived its lien rights. However, the transcript clearly discloses the note was in default and that the consent to the sale of the property was subject to an accounting of the proceeds and to the application of the proceeds to the mortgage debt. See, Hart v. Farmers’ Bank of Bates County, Mo.App., 28 S.W.2d 121; State ex rel. Cantley v. Akin, 224 Mo.App. 114, 22 S.W.2d 836; Bruce v. Kays, 222 Mo.App. 77, 1 S.W.2d 214; Forgan v. Bridges, 222 Mo.App. 84, 281 S.W. 134, 14 C.J.S. Chattel Mortgages § 262, page 874. Waiver is an affirmative defense. Civil Rule 55.10. Respondents neither pleaded waiver nor asserted it in the trial court. A new issue, an affirmative defense, not pleaded, presented, or passed on in the trial court, cannot be presented for the first time on appeal. Cleary v. Cleary, Mo.Sup., 273 S.W.2d 340.

We pass to a consideration of the merits of the question that was presented. Our function is to ascertain the legislative intent as expressed in the relevant statutes. We are aided by certain well established rules. One is that the statutes may be considered historically for whatever light may thereby be shed on the purpose and intent of the legislature in enacting the statutes. Accordingly, we review the history of the statutes concerning the recording of chattel mortgages in Jackson County.

By an act of the Missouri legislature of December 15, 1826, Jackson County, Missouri was declared to be created into a separate and distinct county and commissions were appointed to select “the seat of justice” for the county. Laws of Missouri, 1826, page 30. Accordingly, the City of Independence was selected as the “Seat of Justice” of Jackson County, and ever since has remained the county seat of Jackson County.

Since October 1, 1804, Missouri has had a statute, in substance the same as Section 59.120, RSMo 1959, V.A.M.S. stating- “The recorder shall keep his office at the seat of justice * * *.” 1 Terr.Laws Mo., p. 46, section 1.

In 1845 our legislature passed a general statewide recording statute, now Section 443.460. It provides, “ * * * No mortgage or deed of trust of personal property-hereafter made shall be valid against any other person than the parties thereto * * unless the mortgage or deed of trust, or a true copy thereof, shall be filed in the office of the recorder of deeds of the county where the mortgagor or grantor executing the same resides, * * * and such mortgage or deed of trust, or copy thereof, may be so filed, although not acknowledged, and shall be as valid as though the instrument were fully spread upon the records of the county, * * * in the office of the recorder of deeds; and * * * when the same, or a copy thereof, shall have been filed, as above provided, shall thenceforth be notice of the contents thereof to all the world.”

It is well known, and we take judicial notice that thereafter the City of Kansas City grew to be the metropolis of Jackson County. With knowledge of this, and presumably to accommodate the situation, our legislature in 1873 enacted a statute, now Section 59.170 which provided: “Branch office, Jackson County. The recorder of deeds for Jackson County, Missouri, shall open an office at Kansas City, in which shall be recorded all deeds of trust, mortgages and other instruments affecting real and personal property situated in range thirty-three in said county, as well as all personal property.” Laws of Missouri, 1873, Section 1, page 135.

At the same time (1873) our legislature enacted another statute, now Section 59.180, which provided: “It shall be the duty of the county court to furnish a suitable room in which said office (the Kansas City branch office of the recorder) shall be kept, and to furnish all fuel, books, stationery, etc., used in and about said office, and all deeds or instruments affecting real and personal property in said range thirty-three shall be recorded in a well-bound book, to be kept at said office in Kansas City; and it shall be the duty of the recorder without fee or reward, to make out, at least once in each week, an abstract of deeds and other instruments so recorded and file the same in the office at Independence which shall be open to the inspection of all persons and shall make out a like abstract of all instruments affecting real estate recorded at Independence, and file the same in the office at Kansas City.” Laws of Missouri, 1873, Section 2, page 135.

During this time and for some years thereafter the eastern boundary of Range 33 was generally considered to be the approximate eastern boundary of the City of Kansas City. However, in more current times this is no longer true, and Kansas City has now spread considerably east of that line and into three counties in Missouri: Jackson, Clay and Platte. Jackson County, Missouri is situated in five ranges: namely, 29, 30, 31, 32 and 33. The City of Independence is generally considered as being in Range 32 although in recent times it, also, has spread by annexations into other ranges.

With this background, in 1956 a suit was presented in the United States District Court for the Western District of Missouri involving a chattel mortgage on a truck executed by a Jackson County resident who resided in Range 33. The chattel mortgage was filed in the office of the Recorder of Deeds in Independence, located in Range 32. The chattel involved was not located in Jackson County. Judge Whittaker, later Mr. Justice Whittaker of the United States Supreme Court, after reviewing the statutory sections set out above, ruled on February 17, 1956, that a chattel mortgage executed by a resident of Jackson County could he filed either at the main office of the Recorder of Deeds at Independence or in the branch office at Kansas City, regardless of where in Jackson County the mortgagor resided or the chattel was situated. In Re McKinley, D.C., 138 F.Supp. 4. In so ruling Judge Whittaker stated, loe. cit. 6-7: “Section 443.460 is about as plain and clear as words could make it. It says that a chattel mortgage 'filed in the office of the recorder of deeds of the county where the mortgagor * * * resides’ is validly filed and gives constructive notice ‘to all the world.’ The Jackson County Recorder’s office is, as shown, required to he in the county seat. Independence is the county seat of Jackson County. What basis is there then for saying that a chattel mortgage made by a resident of Jackson County and filed in the office of the Recorder at Independence, as this general statute requires, is not filed at the proper place, regardless of where the mortgaged chattel may be ‘situated’? Certainly any basis for so saying would have to be clear and explicit.

“The only basis suggested by the Trustee is the language in Section 59.170, saying that the Recorder shall open a branch office in Kansas City ‘in which shall be recorded all * * * instruments affecting real and personal property situated in range thirty-three in said county, as well as all personal property.’ What does this ambiguous and duplicitous language mean? Does it clearly and explicitly negate anything said in Section 443.460? Was the duplicative use of the phrase ‘personal property’ in error, or was the last use of the phrase in the clause reading: ‘as well as all personal property’, intended to mean that a chattel mortgage, made by a resident of Jackson County, might be filed in the branch office of the Recorder at Kansas City regardless of where, in the county, the mortgaged property is ‘situated’ ? I believe that this is what it means, and must be construed to mean. Such construction renders that statute consistent with its purpose of establishing a Recorder’s branch office in Kansas City for the filing or recording convenience of the residents of Kansas City, and also consistent with the general statute known as Section 443.460.”

Judge Whittaker’s decision (which we hereafter refer to as the Whittaker decision) was appealed to the United States Court of Appeals, Eighth Circuit, and was affirmed on January 9, 1956. Bostian v. Universal C. I. T. Credit Corporation, 8 Cir., 238 F.2d 809.

The Whittaker decision concerned a mortgagor who lived in Range 33 (in Kansas City) and a chattel located outside of Jackson County (in Springfield). Thus, the chattel was not situated in Range 33 and under Section 59.170 the chattel mortgage was not required to be filed in the Kansas City branch office because the chattel was not situated in Range 33. However, the Whittaker decision went beyond the facts presented when it undertook to state the rule concerning chattels situated in Range 33 in Jackson County, and in declaring that chattel mortgages on chattels situated in Range 33 could be filed either at the Kansas City or at the Independence Recorder’s Office. We need not now concern ourselves with the correctness or incorrectness of the dicta portion of the Whittaker decision for our legislature in 1957 took up anew the subject of what must be filed in the Range 33 (Kansas City) Recorder’s Office, and enacted two new sections on the subject. They provided: “59.163. Instruments where recorded or filed in counties of class one having two recording offices.

“In any county of the first class in which the recorder of deeds is required by law to keep offices both at the county seat and at another place within the county, all deeds of trust, mortgages and other instruments affecting real property situated in that range in the county where the office outside of the county seat is located shall be recorded in such office and not at the county seat; and all chattel mortgages, conditional sales contracts and other instruments creating liens or affecting personal property owned by a person residing in that range or situated in that range and owned by a person who is not a resident of this state, shall be recorded or filed in the office of the recorder of deeds which is situated in the range in which the owner resides or where the property is situated and not at the office of the county seat. Laws 1957, p. 347, § 1.

“59.167. Abstract of instruments in branch offices not required to be kept (class one counties).

“Any recorder of deeds of a county of the first class who is required by law to keep an office at the county seat and also at another place within his county is not required to make or keep at his office at the county seat any abstract or index of instruments or papers recorded or filed in the office outside of the county seat and no such abstract or index of instruments recorded at the county seat is required to be made or kept at the office outside of the county seat, any other provision of law to the contrary notwithstanding. Laws 1957, p. 347, § 2.”

In construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts, and that in amending a statute or in enacting a new one on the same subject, it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature would be accomplishing nothing, and legislatures are not presumed to have intended a useless act. Wright v. J. A. Tobin Construction Co., Mo.App., 365 S.W.2d 742; State ex rel, M. J. Gorzik Corp. v. Mosman, Mo.Sup., 315 S.W.2d 209.

In accordance with the above set out rules of statutory construction it is our view that by enacting Sections 59.163 and 59.167 the legislature intended to change the chattel mortgage recording statutes that applied to Jackson County as they had been interpreted by the Whittaker decision.

Neither appellant nor respondents disagree that some change was intended. However, they do disagree as to what specific change was intended. It is appellant’s contention that the enactment of Sections 59.163 and 59.167 did not in any way change or affect the prior statutory enactments so far as the present factual situation is concerned. The statute, says appellant, does not attempt to deal with a situation involving persons who are residents of ranges in Jackson County other than thirty-three, or who are residents of other counties, in the State of Missouri and who own property situated in Range 33, Jackson County, Missouri. These factual situations, according to appellant, have been covered by Section 443.460.

Respondents’ contention is that the basic principle of recording chattel mortgages, as established in the general recording statutes (Section 443.460) is that the chattel mortgage be recorded at the place of residency of the mortgagor. Such interpretation, says respondent is further bolstered by Section 59.167 abolishing in Jackson County the requirement by keeping at the county seat an abstract or index of instruments recorded at offices located outside the county seat.

Two Amici Curiae have filed excellent briefs. Each is presently engaged in substantial litigation in the federal bankruptcy court of this area in which the very question of law before this court is also the controlling question of law they face in that court. In conformity with the rule that the federal courts will follow the interpretation of local law of the particular state as announced by the state appellate courts our decision will determine the law on this question in their case.

Each Amicus Curiae takes opposing views, one supporting appellant’s position and the other the respondents’ position. The general importance of the question before us is aptly stated by one of them: “ * * * it affects the rights of every person relying on chattel security. Thousands of chattel mortgages involving millions of dollars are filed in Jackson County each year. Merchants, lenders and other persons dealing with chattel security must know that security instruments are filed in the proper office of the recorder of deeds and that they have searched the (proper) public records * *

As a result of our study of the referred to statutes we are persuaded it was the intention of the legislature that Section 59.163 requires all chattel mortgages, conditional sales contracts, and other instruments creating liens or affecting personal property owned by a person residing in Range 33 to be filed in the office of the recorder of deeds in Range 33 at Kansas City, but' that all chattel mortgages, conditional sales contracts and other instruments creating liens or affecting personal property owned by a person who does not reside in Range 33 and who does reside in one of the other four ranges in Jackson County are still authorized to be filed either at the Kansas City Recorder’s Office or at the Recorder’s Office at the county seat in Independence.

We proceed oto state the reasons for our decision. We have accepted the Whittaker decision, other than its dicta, for the persuasive reasons contained therein and because of obvious public reliance thereon as a correct construction of the statutes as they then existed. More important, the prior existing and still existing general recording statute, Section 443.460 gave mortgagees the benefits of the recording law if the chattel mortgage was “recorded in the county in which the mortgagor or grantor resides * * Thus under Section 443.460 if a county had more than one location within the county of its recorder’s office the chattel mortgage could be recorded at any of these locations of the recorder’s office, and entitle the mortgagee to the benefits of the recording statutes. Section 59.163, applicable only to Jackson County, provides that “ * * * all chattel mortgages * * * affecting personal property owned by a person residing in that range (the term “that range” clearly referring to and meaning Range 33) * * * shall be recorded or filed in the office of the recorder of deeds which is situated in that range in which the owner resides * * (Range 33). In so far as we are presently concerned, Section 59.163 changes (amended) Section 443.460 only to the extent of providing that chattel mortgages affecting personal property owned by a person residing in Range 33 must be filed at the branch office of the recorder in Range 33. It did not repeal or change by implication or otherwise that part of Section 443.-460 permitting chattel mortgages affecting personal property owned by a person residing in Jackson County but outside of Range 33 to file the chattel mortgage either at the Kansas City or the Independence locations of the recorder’s office and thereby obtain the benefits of the recording statutes.

Respondents contend statutory Section 59.163 should be so broadly construed as to require chattel mortgages of those living in Range 32 to be filed in Range 32. However, neither the plain intent expressed in Section 59.163 nor accepted rules of statutory construction would lead to such a conclusion.

It is the established rule of construction that the law does not favor repeal by implication and where there are two or more provisions relating to the same subject matter they must, if reasonably possible, be construed so as to maintain the integrity of both. State ex rel. Newton McDowell, Inc., v. Smith, 334 Mo. 653, 67 S.W.2d 50. As stated in State ex rel. and to Use of George B. Peck Co. v. Brown, 340 Mo. 1119, 105 S.W.2d 909, 911, “Repeals by implication are not favored — in order for a later statute to operate as a repeal by implication of an earlier one, there must be such manifest and total repugnance that the two cannot stand * * It is also a rule of construction that where two statutes treat of the same subject matter, one being special (59.163) and the other general (443.-460), unless they are irreconcilably inconsistent, the latter, although later in date, will not be held to have repealed the former, but the special act will prevail in its application to the subject matter as far as it comes within the special provisions. State ex rel. Newton McDowell, Inc. v. Smith, supra; State ex rel. Preisler v. Toberman, 364 Mo. 904, 269 S.W.2d 753.

There is no exclusionary language contained in Sections 59.163 or 59.167 which would prohibit the filing or recording at either the Kansas City or Independence offices of chattel mortgages wherein the mortgagor lived in Jackson County but not in Range 33. Section 59.163 simply did not attempt to legislate in that area of the general recording statute. Thus the mentioned rules of construction lead to our stated conclusion that Section 59.163, applying only to Jackson County, did not repeal by implication that portion of the general recording statute (443.460) permitting residents of Jackson County outside of Range 33 to file their chattel mortgages either at the mentioned Kansas City or the Independence offices. Since the plain language of Section 59.163 only partially changed the existing filing and recording law it must be assumed this was an expression of legislative intent to continue that part of the law not so revised.

We now come to the effect of Section 59.163 on Section 59.170, having in mind the latter section was enacted in 1873. It provided for a branch office at Kansas City, and it also endeavored (in a confusing manner) to provide that it was the place where a chattel is situated that is important in determining where the chattel mortgage must or can be filed. We take judicial notice that in 1873 there were no automobiles, that Jackson County was much more rural in nature and population than now and that as to personal property it was therefore easier to know where it was situated and likely to remain. But in 1957 our legislature clearly wanted to replace the test of where a chattel is situated with the test of where the owner of the chattel resides, the same test as is used in the general recording statute (Section 443.460). Thus, in Section 59.163 the test for determining what chattel mortgages must be filed at the Kansas City branch office of the recorder is where the owner of the chattel resides, and not where the chattel is situated. To this extent Section 59.163 by implication repealed Section 59.170. The result is that if the owner of the affected chattel resides in Range 33 the chattel mortgage must be filed at the Kansas City branch office of the recorder and not at the Independence office, but if the owner of the affected chattel lives in some range in Jackson County other than Range 33 the chattel mortgage may be filed at either the Kansas City branch office or at the Independence office of the recorder, irrespective of where the chattel is situated.

It is noteworthy that House Bill 502 as originally introduced in the 69th General Assembly after providing for a recorder’s office at Kansas City stated, “in which (office) shall be recorded all deeds of trust, mortgages and other instruments affecting real and personal estates situated in Range 33 in said county and deeds of trust, mortgages, conditional sales contracts and other instruments creating liens or affecting personal property owned by a person residing in Range 33 in said county.” This bill was amended in committee by removing that portion requiring personal estates situated in Range 33 to be filed in the Kansas City office and instead required only that chattel mortgages, etc. affecting personal property owned by a person residing in Range 33 be filed in the Kansas City office. As amended the bill became our present Statutory Section 59.163. This history of Section 59.163, we think, is further evidence supporting our previously expressed view of the legislative intent contained in Section 59.163.

It is true that Section 59.167 relieves the recorder of deeds of the obligation to maintain an index or abstract of instruments filed at its branch office and vice versa. The legislature might have believed the problem and cost of maintaining two office indexes and abstracts of duplicatory nature (one of which had a one week hiatus) was no longer warranted. In any event there is no intent expressed in Section 59.167 to repeal or change any part of the recording law other than that relating to the maintaining of somewhat duplicatory indexes and abstracts, and such action is not persuasive of respondents’ position on this appeal.

Respondents stress their suggested interpretation of the statutes carried forth “the fundamental principle of recording chattel mortgages at the office in the range of the mortgagor’s residency for counties of the first class and render chattel mortgages filed in any other range invalid.” However, as earlier noted, there are parts of five ranges in Jackson County. Obviously those residing in Ranges 29, 30, and 31 cannot file a chattel mortgage within their range in Jackson County for there is no recorder’s office located there.

Respondents state it would be helpful to those who wish to check chattel mortgage records to be able to check them all at one location. But would it be helpful to those in Range 33 (Kansas City) who sell chattels or extend credit to Jackson Countians who live outside Range 33, to have to go to the Recorder’s Office in Independence to file or record their chattel mortgages ? Questions such as this properly belong to the legislature which is peculiarly adapted to weigh and evaluate the considerations. The courts cannot rewrite the statutes the legislature in its wisdom has enacted no matter how much such rewriting is desired by a particular group.

We conclude by restating our ruling that appellant’s chattel mortgage was properly filed of record in order to obtain the legal advantages of recording, and the mortgage lien thereby acquired is duly preserved against respondents. Accordingly, the judgment of the circuit court, except as it granted the $450.00 attorney’s fee, is reversed and the cause is remanded with directions that a new judgment be entered in accordance with this opinion.

All concur.

      . All Civil Rules and statutory citations are to V.A.M.S. unless otherwise designated.

      . Only respondents Frank A. Seested, Alice L. Seested and Josephine L. Dwyer filed a brief and all references to respondents’ contentions are limited to them.

      . Sections 59.170 and 59.180 and 59.190 were enacted as local laws in 1873 and were never reenacted as a general law. They were not printed as a part of the revised statutes until 1929 when they appeared as Sections 14811 and 14812, 14813 in a special chapter entitled, “Laws Specially Applicable to Jackson County.” They were omitted from the 1959 Revised Statutes in accordance with Section 3.040 providing no law of a private, local or temporary nature shall be published in the revised statutes.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Kenneth Eugene MITCHEM, Plaintiff, Aulley Woodrow Wilson, Plaintiff-Appellant, v. Wm. D. PERRY, M.D., D. Elliott O’Reilly, M.D., R. A. Michael, D.O., H. Graham Parker, M.D., Raymond A. Ritter, M.D., Harry S. Still, D.O., and R. C. Conrad, M.D., All members of and constituting the State Board of Registration for the Healing Arts for the State of Missouri, and John A. Hailey, Executive Secretary for the State Board of Registration for the Healing Arts, Defendants-Respondents.
    No. 24163.
    Kansas City Court of Appeals. Missouri.
    April 5, 1965.
    Motion for Rehearing and for Transfer to Supreme Court Denied June 7, 1965.
    Application for Transfer Denied July 12, 1965.

      Edward L. Filippine, Clayton, for appellant.
    Norman H. Anderson, Jefferson City, Albert J. Stephan, Jr., St. Louis, John W. Noble (Bradley & Noble) Kennett, John O. Bond, P. Pierre Dominique, Jefferson City, for respondents.
   SPERRY, Commissioner.

Plaintiff is a legally qualified and practicing physician and surgeon under the laws of Missouri, being licensed as a D.O. Defendants are members of and constitute the Board of Registration for the Healing Arts in Missouri, hereafter referred to as the Board. The Board has the power and duty to issue licenses to qualified applicants, authorizing them to practice their profession as Medical Doctors, or as Doctors of Osteopathy. Plaintiff filed application with the Board, asking that “Medical Doctor” be made to appear on his license.

The Board, consisting of both M.D.’s and D.O.’s, unanimously denied the application and plaintiff instituted proceedings in the Circuit Court of Cole County for a judicial review of the decision. The court issued its writ of certiorari and reviewed the decision under the provisions of Sec. 536.100 RSMo 1959, V.A.M.S. From a judgment affirming the decision of the Board plaintiff appeals.

Plaintiff, by his counsel, and the Board, by the Attorney General of Missouri, have filed briefs. Briefs have also been filed by Counsel for Intervenors herein, Missouri State Medical Association and Missouri Association of Osteopathic Physicians and Surgeons. Intervenors support the decision of the Board.

The facts upon which the court reviewed the decision were stipulated. From those facts we are to determine whether or not the Board had before it substantial evidence upon which it could have reasonably reached the decision that it reached; whether or not the decision is supported by the facts on the whole record; and whether or not the result reached is against the overwhelming weight of the evidence. Sec. 536.140 RSMo 1959, V.A.M.S.

After having attended duly accredited, reputable Colleges of Osteopathy, for a total of four terms of thirty-two weeks each, and after having received thereby the degree of Doctor of Osteopathy, and after having applied for licensing and having successfully completed a written examination, plaintiff was legally licensed in Missouri as a Physician and Surgeon, on June 18,1957. Since that time he has received a certificate of registration for.each ensuing year.

On March 30, 1961, the California Medical Association and the California Osteopathic Association signed a contract of unification. One of the provisions thereof was to the effect that the California College of Osteopathic Physicians and Surgeons should become the California College of Medicine, with power to issue the degree of M.D. under criteria established and administered by the Advisory Educational Committee consisting of the Dean of the University of California at Los Angeles School of Medicine; Dean of the University of Southern California School of Medicine; Dean of the Loma Linda School of Medicine; and the Dean of the California College of Medicine. This Committee was to be assisted, in an advisory capacity, by other Medical Doctors and prominent Californians, and by the Attorney for the California Osteopathic Association. The criteria included the requirement that applicants for the degree of Doctor of Medicine must file an application with the California College of Medicine setting forth: photostatic copy of his California license as a physician and surgeon; transcript of credits at all other institutions; and certain other matters of minor importance. If the applicant met the above requirements and had met educational requirements for the degree of Doctor of Medicine, such a degree was to be issued. The California College of Medicine was approved, accredited and chartered on February 15th, 1962, and has been so since that time, including the time when the judgment in this case was rendered, July 16th, 1964.

On February 23rd, 1962, plaintiff filed his application for registration in the California College of Medicine for the purpose of obtaining a degree of Doctor of Medicine. He was so accepted and registered. He was, at that time, and had been since July 18th, 1957, a legally licensed physician and surgeon in California, as a D.O. However, plaintiff never attended or studied in the California College of Medicine nor in any other Medical College, nor has he taken a correspondence course from any such school. He has never resided in or practiced his profession in the State of California. His only medical study and education was received by his study and attendance in accredited Osteopathic Colleges, which led to his being granted the degree of Doctor of Osteopathy. All of the physicians who passed upon plaintiff’s qualifications to receive the degree of Doctor of Medicine were, themselves, Doctors of Osteopathy who received the degree of Doctor of Medicine in essentially the same manner as did plaintiff.

Plaintiff bases his right to have entered on his Physician and Surgeon license the degree of Medical Doctor, on the fact that he has had issued to him such a degree by the California College of Medicine. He contends that he is absolutely entitled to the relief sought under the clear provisions of Sec. 334.047 RSMo 1959, V.A.M.S.

The Board and Intervenors contend that such relief should be denied because the provisions of Sec. 334.031 and 334.047 RSMo 1959, V.A.M.S., when read together, do not authorize the entry demanded for the reason that plaintiff is not “entitled” to the degree of Medical Doctor, he never having earned such a degree in the manner contemplated by the provisions of the Statutes.

By Senate Bill 50, Laws, Missouri, 1959, the Legislature repealed Chapters 334 & 337, RSMo 1959, as they then existed, and enacted a new code on the subject here considered. This code appears in full as Chapter 334, RSMo 1959; Chapter 334, V.A. M.S., Vol. 17, 1964, Cumulative Annual Pocket Part. The sections above referred to constitute a part of the code, all having been enacted at the same time. They are, therefore, in pari materia, and must be read and construed together. Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721-725. Effect should be given to all provisions, if possible, as was intended by the Legislature.

Sec. 334.031, supra, prescribes the qualifications of candidates for licenses. They are, in part, as follows:

"QUALIFICATIONS OF CANDIDATES FOR LICENSES
“1. * * * They shall also furnish satisfactory evidence of having attended throughout at least four terms of thirty-two weeks of actual instructions in each term and of having received a diploma from some reputable medical college or osteopathic college that enforces requirements of four terms of thirty-two weeks for actual instruction in each term, including * * * (emphasis ours).

Sec. 334.047, supra, provides in part, as follows:

"LICENSE TO SHOW DEGREE HELD BY LICENSEE
“1. On the licenses issued by the board, the board shall enter after the name of the licensee the degree to which the licensee is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputable by the American Medical Association and approved or accredited as reputable by the American Osteopathic Association.
“2. A Licensee under this chapter shall, in any letter, business card, advertisement, prescription blank, sign, or public listing or display of any nature whatsoever, designate the degree to which he is entitled by reason of his diploma of graduation from a professional school approved and accredited as reputaable by the American Medical Association or approved and accredited as reputable by the American Osteopathic Association.” (emphasis ours).

From the language used the Legislature clearly intended that applicants for license as physicians and surgeons should have shown on their license the degree to which they were entitled by graduation from a reputable college, to-wit: Medical Doctor or Doctor of Osteopathy, depending upon which school they attended and from which they graduated. That is the interpretation of all physician and surgeon members of the Board, which consisted of both D.O.’s and M.D.’s. That construction is supported here by both the Missouri State Medical Association and the Missouri Association of Osteopathic Physicians and Surgeons.

It is a matter of common knowledge that, historically, these two methods of practicing the healing arts have been taught in separate schools and courses of training in Missouri. State ex rel. Crow v. National School of Osteopathy, 76 Mo.App. 439-442, et seq. They still are. Each group maintains a standard of ethics and regulations for enforcement thereof. By their appearance here, they both evidence a desire to continue this policy. It is evident, by our general statutory law, that it is the public policy of Missouri to encourage self-government and self-determination by the members of our numerous organized guilds, labor unions, trades and professions, in so far as is consistent with the best interests of the public.

In enacting Chapter 334, supra, the Legislature intended to follow that pattern. It could not have had in mind the unification of these two branches of the healing arts, in the State of California, two years thereafter, nor that such contract of unification would be later implemented by California Statute. Public policy of Missouri, as evidenced by duly enacted legislation, may not be amended by action taken by professional organizations located in foreign states, nor by the action of the legislatures of such states.

In State ex rel. Granville v. Gregory, et al. (State Board of Health) 83 Mo. 123, the court considered and discussed the authority of legally established medical schools and colleges to issue degrees, and said, 1. c. 130:

“ * * * Among the incidents and consequences which have been customary with institutions of this character are those of conferring degrees upon those of the students who, having pursued the curriculum have graduated, and the issuance to them of diplomas bearing evidence of that fact. This has been done by such institutions since the thirteenth century. 2 Kent Com. 270. A diploma is said to be ‘a document bearing record of a degree conferred by a literary society or educational institution’. Webst. Diet. In short, a statement in writing, under the seal, of the institution, setting forth that the student therein named has attained a certain rank, grade or degree in the studies he has pursued. * * (emphasis ours).

And in State ex rel. Crow v. National School of Osteopathy, supra, 76 Mo.App. l. c. 443, this court said:

“A careful reading of this statute forces the conclusion, that by it the legislature meant to impose, as a condition precedent to the issue of a diploma, that the graduate must have attended four terms of not less than five months each * * (emphasis ours).

The court condemned the practice by defendant school officials of issuing a diploma to one who had never attended the school. It was held that, in order to be legally entitled to receive a diploma, one must have “been in personal attendance as a student of such school for at least four terms * * * before graduation”.

No doubt, the members of the legislature were conversant with the general practice by established and reputable Colleges of Medicine and of Osteopathy in this respect. If so, they would have expected that no diploma of graduation, or degree of D.O. or of M.D., would be issued to anyone who had not attended such college and pursued a course of study therein for four terms of at least thirty-two weeks per term; that no such degree would be issued to one who had never attended such college and had never been graduated therefrom, never having pursued any course of study therein. The Legislature, no doubt, relied on the custom and practice, in this matter, which had existed for more than seven hundred years.

The Board had the power and duty to look beyond the seal and ribbons of the diploma to determine whether or not it was a diploma such as is contemplated by the law of Missouri, and such a degree as plaintiff was “entitled” to have received. To hold otherwise would be to say that the Board, as a public body with a trust to perform must, in some cases, blunder about in Stygian darkness like a blinded Cyclops, unable to intelligently perform its duties and protect the public health.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

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

All concur.


author: BRADY, Commissioner.

text:
    Rose SINGER, Plaintiff-Respondent, v. Nathan SINGER, Defendant-Appellant.
    No. 31891.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.
    Motion for Rehearing or to Transfer to Supreme Court Denied May 14, 1965.

      Adolph K. Schwartz, St. Louis, for defendant-app ellant.
    Kerth, Thies & Schreiber, C. Kenneth Thies, Clayton, for plaintiff-respondent.
   BRADY, Commissioner.

The basic question involved in this appeal is whether a trial court can modify an alimony judgment based upon an agreement of the parties entered into in connection with the original divorce proceeding and providing for monthly alimony payments. The trial court sustained the respondent’s motion to dismiss the appellant’s motion to modify the judgment. The parties will hereafter be referred to by their designation in the original divorce proceeding.

Shortly after the plaintiff filed her petition for divorce, the parties entered into a stipulation styled “Agreement for Property Settlement.” In this agreement the defendant was the second party and the plaintiff was the first party. The specific paragraphs in the agreement that are of primary interest in this appeal read as follows: “1. In the event the aforementioned Court shall, upon the trial of said suit, make and enter its decree therein, granting plaintiff a divorce from the bonds of matrimony, then the settlement hereinafter provided to be made shall at once take effect as an agreement binding the parties with reference to the rights and obligations of each party as the spouse of the other, and with reference to all marital and other rights of either in and to the property and estate of the other party, whether real, personal or mixed, and wherever situated. * * * 8. Any decree of divorce entered in this matter shall provide that Second Party pay First Party as alimony the sum of Two Hundred Fifty Dollars ($250.00) per month, payable monthly on the first of each month. The first alimony payment shall be adjusted from the date of any decree that may be entered to the first of the following month. * * * 12. It is the intention of the parties hereto by this contract to adjust all property rights which said parties may have, and to fully and finally adjust all claims, present or in the future, for support money and alimony, if any, and such settlement shall be considered final as between said parties as to any claim which each may have against the other for support money, alimony, or other marital interest, and the execution of this contract shall be a final and full release of any and all claims which either party may now or hereafter have against the other.” (Emphases supplied.)

The other provisions of the “Agreement for Property Settlement” are very extensive and need only be summarized in this opinion as they are pertinent only as they tend to show the intention of the parties to fully, completely and finally adjust all claims between the parties. The agreement specifically disclaimed that it was based upon the consent of either of the parties that the other should procure a decree of divorce or upon any agreement to waive any defense. In the event the court denied a decree of divorce the agreement was to be null and void.

The agreement provided for the conveyance of real estate which the parties jointly owned; the ownership of the household furnishings; the equal division in kind of certain shares of stock in various corporations; the ownership of certain bank account savings certificates and sayings and loan accounts; and the family automobile. It further provided that, with one exception, the defendant was to execute an irrevocable change of beneficiary as to all life insurance policies in favor of the minor son born of this marriage. The defendant was to pay the plaintiff's attorneys and the court costs. The agreement was silent as to any provision regarding its continuance or termination upon the death or remarriage of either party.

It appears from the transcript that on the 12th day of April, 1961, there was submitted to the trial court an instrument designated “Decree” which apparently was prepared by one of the attorneys then in the case. That instrument included, haec verba, the “Agreement for Property Settlement” heretofore referred to. That decree was not signed by the trial court which entered its own decree providing, in its parts pertinent to our inquiry, “ * * * that said plaintiff have and recover of said defendant the sum of $250.00 per month as and for alimony; and the further sum of $500.-00 as and for attorney fees; and that said defendant pay the costs herein incurred. Stipulation filed and approved.” On the same date there was filed in the court a form upon which appeared the signature of each of the attorneys and that of the trial judge. After reciting that the plaintiff was awarded a decree of divorce on her petition, the amount of alimony, the amount of the attorneys’ fees, and that defendant was to pay the costs, this paper also, above the signature of each of the attorneys, contained the words “Stipulation filed: and approved.”

On August 16, 1963, the defendant filed the present motion for modification of the judgment. That motion for modification alleged that the defendant had suffered a serious illness which had incapacitated him and resulted in a reduction in his net earnings so that while he had a net adjusted gross income of approximately $10,500.00 for the year immediately preceding the decree of divorce, his net adjusted gross income for the year immediately preceding the filing of this motion to modify was approximately $2,500.00. The prayer of the motion was that the court decrease the monthly award to a sum which the court deemed proper under the circumstances then existing. The defendant first filed a motion to quash the motion for modification. In that motion it was set out as grounds therefor that the monthly alimony payments were “strictly contractual in nature” under the provisions of the agreement for property settlement and were not therefore subject to modification. This motion was never acted upon and the defendant later filed an “ * * * Amended Motion to Dismiss Defendant’s Motion for Modification of Judgment.” The sole ground stated in the motion to dismiss was that “1. The alimony of Two Hundred and Fifty ($250.00) dollars per month was awarded by a consent judgment entered pursuant to a prior agreement between the parties and is not subject to modification, except by consent of the parties.” The trial court sustained the motion to dismiss on the ground that the alimony in the original decree “ * * * is not subject to modification by this Court, same being contractual in nature. * * * ”

It is now a well settled doctrine that a husband and wife, in contemplation of divorce, may, by valid contract, settle all property rights growing out of the marital relation including the wife’s claim for alimony, and if the agreement is adopted in the decree, such decree, or that part of it as adopted by the court, becomes immune from modification as to the matters covered by the agreement. North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061; Tracy v. Tracy, Mo.App., 205 S.W.2d 947.

It is equally well settled that in this state Section 452.070 RSMo 1959, V.A.M.S., does not authorize the modification of a legal contractual relation which the husband has assumed and agreed to pay his wife, North v. North, supra; Tracy v. Tracy, supra. If the divorce decree is an award of statutory alimony, then it is subject to modification and we should remand this cause for trial upon the merits of that issue. On the other hand, if the decree constitutes a judicial adoption of the contractual relation between the parties, then the divorce decree is immune from the modification defendant seeks.

In determining the issues presented by this appeal the nature of the proceeding here involved must be kept clearly in mind. This is not an action to enforce the “Agreement for Property Settlement.” That agreement would have been valid even though never submitted to the divorce court for approval. Dorsett v. Dorsett, 232 Mo.App. 126, 90 S.W.2d 188, l. c. 194; Bishop v. Bishop, Mo.App., 162 S.W.2d 332, l. c. 335; 17A Am.Jur., Divorce and Separation, Section 900 et seq. Its validity is not in issue in this proceeding. Neither is this an action involving the availability of other judgment remedies such as execution or similar proceedings. What is here involved is an attempt to modify the decree as to the alimony therein by a proceeding under § 452.-070, supra.

It is also necessary that the divorce decree be clearly understood. The decree contains the words “Stipulation filed and approved.” There was no “stipulation” filed in the case. The only paper that was filed was the “Agreement for Property Settlement.” The defendant contends that the court did not intend to refer to that agreement when it used the words “Stipulation filed and approved.” We cannot agree. The fact the trial court referred to the “Agreement for Property Settlement” as a “Stipulation” is not controlling. The important fact is that the trial court indicated that it was approving what had been filed with the court. Since the “Agreement for Property Settlement” was the only thing filed, we must read the words “Stipulation filed and approved” as “Agreement for Property Settlement filed and approved.”

The divorce decree in the instant case was not an award of statutory alimony but instead constituted an adoption by the court of the contractual obligation entered into between the parties. In those cases where the agreement between the parties is set out, haec verba, in the decree there can be no doubt as to the court’s adoption of an agreement. For an example see Jenkins v. Jenkins, Mo.App., 257 S.W.2d 250. It is doubtless for this reason that this has been said to be the better practice. See the dissents of Carter, J., in Flynn v. Flynn, 42 Cal.2d 55, 265 P.2d 865 at l. c. 868 and Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873 at l. c. 878. However, the issue does not turn upon whether the trial court incorporated the agreement into the decree by setting it out in full or whether it did so by some other manner. In Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675, this court held that some minute entry or act of the court could show the adoption of the agreement. In the instant case, as in Tracy v. Tracy, supra, the trial court did not set out the full agreement in the decree but referred to the agreement and indicated its approval of it. We cannot assume that the divorce court included the words “filed and approved” in its decree without intending that they should have some effect. We think the act of the court to use this language in the decree constitutes a clear indication that the trial court did act to adopt the provisions of the agreement between the parties as to alimony and did not exercise its independent judgment and discretion upon that matter.

An examination of the “Agreement for Property Settlement” indicates clearly that the parties intended that document to fully and permanently settle the issue of alimony both as to such sums then due and as to any future claims for alimony. In Jenkins v. Jenkins, Mo.App., 257 S.W.2d 250 at l. c. 252, the contract between the parties specifically provided that the “ * * * decree of any court approving this contract or fixing the amount or making an allowance to the wife shall he the specific and definite sum and amount set forth in the contract and shall not be subject to revision, change, modification, decrease, reduction, diminishment, increase or enlargement by the parties or by any court which may have jurisdiction of the parties or of their marital rights or interests in any proceeding concerning the same. * * * ” It was also provided that the terms of the contract between the parties in that case (257 S.W.2d 250, l. c. 253) “ * * * shall not be enlarged, altered, changed or revised or modified by court or parties * * While the language in paragraph 12 of the contract is not as specific as the language found in the contract in the Jenkins case, nevertheless the provisions in the agreement in the instant case that it “ * * * shall be considered final * * * ” between the parties “* * * as to any claim which each may have against the other for * * * alimony * * * ” is a clear provision covering future disputes between the parties as to that matter. In the instant case it is obvious that the parties intended and understood the provisions of the contract with respect to the award of alimony, when approved by the court, to constitute a final adjustment of all said claims and that this adjustment was to apply, as stated in paragraph 12 of the contract to present claims or to those “in the future.”

As indicated by the summation of the other provisions of the agreement between the parties, this agreement was extensive and fully disposed of all of their jointly held property as well as settling the rights that each might have against the other arising out of the marital relation. The provisions in that agreement as to alimony constituted an integral and important element in the adjustment of the rights of the parties. This court cannot change that agreement so as to take better care of the defendant than he took of himself when he entered into such an agreement without making any provision therein as to future modification in the event there was a change in condition which resulted in a diminished income with which he might make the alimony payments agreed to.

The defendant also urges the trial court erred in sustaining the motion to dismiss because, in its order doing so, it stated the decree could not be modified as it was “contractual in nature” and this is a different ground than that urged in the motion i. e., that the decree was a “consent decree.” We need not rule upon the matter. Assuming arguendo that in an appeal from a case of this nature this court could not consider any ground to sustain the motion to dismiss except that specifically stated in the motion, the defendant’s contention is still without merit. This for the reason there is no essential difference between the ground stated in the motion and that given by the trial court to sustain its ruling. Decrees of the nature here involved have been spoken of as “consent decrees.” Tracy v. Tracy, supra. The defendant does not allege he was misled or in any way prejudiced by the action he now complains of and it is difficult if not impossible to see how he could have been prejudiced. The defendant’s brief graphically illustrates he understood the theory of the trial court’s ruling as well as the theory of the plaintiff’s motion and that he treated both throughout this proceeding as identical in nature. There is no merit to the contention.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

WOLFE, P. J., RUDDY, J., and WILLIAM E. BUDER, Special Judge, concur.

ANDERSON, J., not participating.


author: HOGAN, Judge.

text:
    Margery HENRICKSON, Plaintiff-Appellant, v. Ronald Lee RESNIK, Defendant-Respondent.
    No. 8382.
    Springfield Court of Appeals. Missouri.
    May 5, 1965.

      H. K. Wangelin, Wangelin and Friede-wald, Ralph R. Bloodworth, Bloodworth & Bloodworth, Poplar Bluff, for plaintiff-appellant.
    Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, Joe C. Wel-born, Briney & Welborn, Bloomfield, for defendant-respondent.
   HOGAN, Judge.

This case arose out of a collision between automobiles driven by the plaintiff and defendant at the intersection of Ninth and Maude Streets in Poplar Bluff, Missouri. Plaintiff’s husband, Dr. H. M. Henrickson, who was riding with her as a passenger, was killed, and the plaintiff and defendant both sustained certain personal injuries.

Plaintiff charged the defendant with numerous acts of primary negligence, but submitted both her claim for the wrongful death of her husband and her own claim for personal injuries in a single instruction predicated upon the defendant’s humanitarian negligence in failing to slacken the speed of his vehicle and swerve to the right. The defendant, who filed an affirmative counterclaim, submitted his case upon the plaintiff’s primary negligence in entering the intersection when the defendant was approaching so closely as to constitute an immediate hazard of collision, and upon plaintiff’s humanitarian negligence in failing to stop. The jury found against the plaintiff both on her claim for wrongful death and for personal injuries, and found affirmatively for the defendant upon his counterclaim, assessing his damages in the sum of $5,000.00. The plaintiff has appealed.

In order to deal appropriately with the parties’ contentions, it is necessary to state the evidence introduced tending to support the conflicting factual versions of the manner in which the collision was brought about.

Ninth Street runs north and south, and Maude Street runs east and west. Both are paved, concrete streets, and they intersect approximately at right angle's. At the west entrance to the intersection, Maude Street runs slightly upgrade and is 26 feet 3 inches wide from curb to curb; it is slightly wider at the east entrance. There is a stop sign on Maude for eastbound traffic 2 feet 1 inch west of the southwest corner of the intersection. On the northwest corner of the intersection,' there is a brick building, then known as Piggie Hogg’s Market, the south property line of which is 7 feet 2 inches north of the north curb line of Maude. On the west side of Ninth Street, north of the intersection, there is a parking lane or strip some five feet wide along the west curb “in front of” Piggie Hogg’s, so that Ninth Street is 26 feet 8 inches from curb to curb on the north side of the intersection but only 21 feet 3 inches from curb to curb at the south entrance. There was no stop sign for traffic southbound on Ninth.

As the plaintiff related the accident, she was driving east on Maude, about 4:25 P.M. on Saturday, January 5, 1963, taking her husband to his work at the Poplar Bluff Hospital. Plaintiff was driving and her husband, a physician, was seated in front with her. As-she came to the intersection, Mrs. Henrickson stopped about two feet west of the stop sign, and looked first to her right, and then to her left. At the time, there was a car parked along the west curb of Ninth Street, and Mrs. Henrickson’s view to the left (north) was obstructed by the parked vehicle, and to some degree by the building, but she estimated that she coúld then see 40 to 50 feet to her left. Plaintiff then “eased in” to look further, and again made an observation of traffic when the front end of her automobile was clear of the parked automobile and some two feet out into the intersection. At the time she made her second observation, plaintiff estimated that she could see 100 to 125 feet in either direction, north or south, and estimated her forward speed to be two to four miles an hour.

Perceiving no oncoming traffic in either direction, plaintiff then proceeded into the intersection, increasing her speed to five or six miles an hour. As she reached a point where the front end of her vehicle, a four-door 1962 Cadillac, was about four feet east of the east curb line of Ninth Street, her automobile was struck behind the left front door by the defendant’s vehicle and pushed south against a telephone pole. Dr. Henrickson was thrown from the vehicle and was killed, and the plaintiff sustained personal injuries.

The plaintiff also had the testimony of two eyewitnesses, the first a Mr. Everett Mitchell, who had been standing nearby when the accident occurred, and a Mr. O. C. Cutsinger, who had seen the casualty from a sunroom in his house on the southwest side of the intersection. Mr. Mitchell had been standing on the east side of Ninth Street preparing to enter the market, and when he had started west across Ninth Street he saw the defendant’s southbound vehicle, which “honked [its] horn at me.” Mr. Mitchell stopped and observed the plaintiff’s automobile “easing out” into the intersection, “and the Cadillac [plaintiff’s vehicle] pulled out in front of him [defendant], and it hit it, hit the Cadillac in the side.” By means of reference points on a photographic exhibit showing the intersection from the north on Ninth Street, Mr. Mitchell estimated that the defendant’s vehicle was 91 feet north of the intersection when the plaintiff’s vehicle started up. This witness estimated that the front end of the plaintiff’s vehicle was about even with the east curb line of Ninth Street when the collision occurred. It was his recollection that there were “two or three cars” parked along the west curb of Ninth Street at the entrance to the market.

Mr, Cutsinger, who was sitting in his sunroom at the time the accident occurred, testified that he had first seen the plaintiff stop at the stop sign and then had seen her look both to the south and to the north on Ninth. Mr. Cutsinger had seen the plaintiff proceed into the intersection and then had seen the defendant’s automobile proceeding south on Ninth Street. At the time when the front end of the Cadillac was “about the center of the intersection,” the defendant’s vehicle had been 83 feet north of the intersection; and as the front end of the Cadillac came to a point some two to four feet east of the east curb line of Ninth Street, the defendant’s vehicle struck the plaintiff’s “about the back door of her car.” It was Mr. Cutsinger’s testimony that the defendant’s vehicle was being driven on the east or left side of Ninth Street, and that he had not slackened his speed at any time before the collision. As Mr. Cutsinger recalled, there had been one automobile parked along the west curb line of Ninth Street, probably four or five feet north of the north curb line of Maude.

The defendant, Ronald Resnik, was 17 years old at trial time, and was represented by his father as guardian ad litem. On the occasion in question, he testified, he and a group of his companions were “just riding around” in his father’s automobile. As he approached the intersection in question, he was driving at a “slow rate of speed,” which meant “22, 25 miles an hour.” The defendant did not see the Henrickson vehicle until it was “out in front of me,” at which time, according to his “best estimate,” he was 10 to 15 feet from the nearest edge of Maude Street. He had no time to sound his horn, nor to apply his brakes. Though there is no center line marked on Ninth Street, the defendant estimated he was driving “as close as I could to the right,” but because of the automobiles parked along the west curb (“in front of” Piggie Hogg’s) he was driving with the left part of his vehicle about one foot east of the center of the street. The defendant “knew of two” automobiles which were parked on his right. According to Mr. Resnik, the Henrickson automobile was “in the center of the intersection” when the collision occurred. He believed that he had seen the Henrickson vehicle when it first became visible — that he had “seen it when it first come through.”

Defendant also had the testimony of three of his companions, who had been occupants of his vehicle when the casualty occurred. Robert Christian, the first of these witnesses, was seated in the right front of defendant’s vehicle. He estimated the defendant’s speed immediately prior to the accident at “around 25.” He had seen the Henrickson vehicle when “it was just beginning to pull out,” and it was then “15, 20, 25 feet, something like that,” away. Mr. Christian explained that there were “two or three cars * * * just right on the corner,” and consequently “you couldn’t see it [the Henrick-son car] real good.” He believed that the “middle” of the Henrickson vehicle had been “in the center of Ninth Street” when the two cars collided.

Joe Hefner, Jr., another of defendant’s witnesses, had been riding in the left rear of defendant’s automobile. “If [he] remember [ed] right,” there were three cars parked along the west curb of Ninth Street, and the “closest one” was “right on the curb” of Maude Street, so that a vehicle approaching on Maude Street could not be seen. When the Henrickson vehicle “pull[ed] out from behind the parked car,” the witness had seen it “about two car lengths” away; and, while the witness didn’t know for sure, he “would say” the plaintiff was going three to five miles an hour.

Robert Eaton, also a passenger in the defendant’s vehicle, estimated defendant’s forward speed at “I’d say 20,25 miles an hour.” Mr. Eaton had had his attention diverted by glancing at Mr. Mitchell (the pedestrian), and “at the instant [he] turned back around * * * [he] saw the car [Mrs. Henrick-son’s car] pull out in front.” When he saw Mrs. Henrickson, her vehicle was “a couple of feet” out in the intersection, going into the middle of the street, and at that time Mr. Resnik was “not more than a car length” north of the intersection. It was this witness' memory that plaintiff’s vehicle, or the front part of it, was near the east curb of Ninth when the collision occurred. He only recalled seeing one car parked along the west curb of Ninth, “fairly close” to the north curb line of Maude.

The plaintiff first urges that the defendant made no submissible case on his counterclaim, either upon primary negligence or under his humanitarian doctrine. Of course, if the defendant made a submissible case under either theory, there was no error in refusing the plaintiff’s motion for directed verdict and her motion for judgment after verdict. Nelson v. Wabash Railroad Co., Mo., 300 S.W.2d 407, 409 [1]; DeLay v. Ward, 364 Mo. 431, 435, 262 S.W.2d 628, 630 [2]; Ellmaker v. Goodyear Tire & Rubber Co., Mo.App., 372 S.W.2d 650, 659 [6]. The specific point which plaintiff presents with respect to defendant’s primary submission is that defendant’s own evidence shows him to have been guilty of contributory negligence as a matter of law, and it is to this point that we have directed our attention primarily. We have, however, set forth the evidence in some detail, principally to show that in many respects the parties’ factual versions of the accident cannot be reconciled, and to demonstrate that in large part the witnesses’ reconstruction of the casualty was based on estimates and “best judgments,” testified to more than a year after the accident occurred.

It goes without saying that in this case it is possible to argue many conflicting inferences from the evidence, but it must be borne in mind that in general, when the two opposing versions of an intersectional collision are contradictory, the issues of negligence and contributory negligence are simply for a jury’s resolution. Moore v. Southwestern Bell Telephone Co., Mo., 301 S.W.2d 817, 819 [1]; Jungeblut v. Maris, 351 Mo. 301, 304, 172 S.W.2d 861, 862 [1-3]. Our review of the evidence convinces us that, while the fact issues might easily have been otherwise resolved, the defendant made a case on primary negligence. It was the defendant’s trial theory, so far as his primary submission was concerned, that the plaintiff failed to observe the defendant approaching on Ninth and that she proceeded into the intersection when the defendant was approaching so closely as to constitute an immediate hazard of collision. Upon the record presented, we believe his approach was sound. The only evidence in the record concerning the plaintiff’s view of traffic on Ninth Street, both as she stopped at the stop sign and as she made her second observation before entering the intersection, came from the plaintiff herself, who testified that she could see 40 to 50 feet in either direction when she stopped first, and that when she made her second observation she could see “a hundred or a hundred and twenty-five foot up the street.” Her speed, according to her estimate, was then two to four miles per hour and, as the defendant points out, she could then have stopped almost instantly. Wegener v. St. Louis County Transit Co., Mo., 357 S.W.2d 943, 947 [2]; Johnson v. Kansas City Pub. Serv. Co., 358 Mo. 253, 260, 214 S.W.2d 5, 10 [7-12], While the plaintiff makes some argument on this point, we believe her duty was governed by the provisions of Section 304.021, subpar. 4, V.A.M.S., requiring her to “yield the right of way to other vehicles * * * which are approaching so closely * * * as to constitute an immediate hazard,” rather than the provisions of subpar. 1 of the same section, since there admittedly was a stop sign for Mrs. Henrickson, but none for the defendant. Creech v. Blackwell, Mo., 298 S.W.2d 394, 399-400 [3]; James v. Berry, Mo.App., 301 S.W.2d 530, 532 [2, 3]. What is more, we think her duty to stop or otherwise yield continued into the intersection if it reasonably should have appeared that defendant’s approach had created an immediate hazard of collision. Schaetty v. Kimberlin, Mo., 374 S.W.2d 70, 73; Herr v. Ruprecht, Mo., 331 S.W.2d 642, 648 [5, 6], Regardless of the defendant’s precise distance north of the intersection when plaintiff began to cross, we believe the evidence supports an inference that he was approaching closely and was indeed almost into the intersection when plaintiff undertook to proceed. Further, we consider it a reasonable conclusion that during the course of two observations of oncoming traffic the plaintiff should have seen the defendant if she had made a proper observation of southbound traffic and had exercised due diligence in estimating the defendant’s rate of approach. We think a jury might also have inferred that the defendant’s “honk” at Mr. Mitchell should also have served the plaintiff as a warning of the defendant’s approach. We conclude that a submissible case was made on defendant’s primary theory.

Turning to plaintiff’s specific point —that defendant guilty of contributory negligence as a matter of law — we bear in mind that this may not be said unless the evidence most favorable to the defendant’s submission, together with the inferences permissible therefrom, allow for no other reasonable conclusion. Pender v. Foeste, Mo., 329 S.W.2d 656, 659 [2, 3]; Kickham v. Carter, Mo., 314 S.W.2d 902, 908-909 [8] [9]. Otherwise, the defendant’s contributory negligence was a jury question.

The plaintiff, both in her brief and in her argument, has laid great stress upon certain parts of the testimony dealing with the relative speeds and positions of the two vehicles immediately before and after the collision, and much emphasis is laid upon precise calculations based on such evidence. Granting that such arguments may be appropriate where a case is triable only under the humanitarian doctrine, and may indeed have some analogy here, we think this appeal cannot realistically he decided upon conclusions reached by the application of mathematical formulae to the evidence. See Herr v. Ruprecht, supra, 331 S.W.2d at 648-649 [7]. The record makes it abundantly clear that both parties reconstructed the accident by means of evidence which consisted in large part of approximations, estimates and “best judgments,” and that both the parties and the witnesses were attempting to recall in meticulous detail a transaction which happened, so to speak, in the space of a few seconds. It is true, as plaintiff argues, that defendant testified he was only 10 to IS feet away from Mrs. Henrickson when he saw her, but his very words were “my best estimate is 10 to 15 feet,” and the defendant was not bound by such an approximation, McDonough v. St. Louis Pub. Serv. Co., Mo., 350 S.W.2d 739, 744-745 [3]; Lay v. McGrane, Mo., 331 S.W.2d 592, 596-597 [3-5]; Duffendack v. St. Louis Pub. Serv. Co., Mo.App., 365 S.W.2d 52, 53 [1-3], nor can calulations based on such estimates or approximations convict the defendant of contributory negligence as a matter of law. Zumault v. Wabash Railroad Co., Mo., 302 S.W.2d 861, 864-865 [6]; Smith v. Siercks, Mo., 277 S.W.2d 521, 525 [3]; State ex rel. Thompson v. Shain, 351 Mo. 530, 534-538, 173 S.W.2d 406, 407-409 [2]. It is also true that failure to see what is plainly visible may constitute negligence as a matter of law, James v. Berry, supra, 301 S.W.2d at 533-534 [6], but in this case there was evi-rence indicating that defendant’s view of plaintiff’s emerging vehicle was partially obscured, and that there was a pedestrian and a line of parked vehicles near the intersection to occupy part of the defendant’s attention. In these circumstances, the defendant was not obliged to keep a lookout in all directions at once, Slaughter v. Myers, Mo., 335 S.W.2d 50, 54 [6]; Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, 923 [4, 5], nor, in the absence of positive evidence that in the exercise of the highest degree of care Resnik should have seen Mrs. Henrickson sooner than he did, should he be charged with contributory negligence as a matter of law in failing to apprehend her approach. Kickham v. Carter, supra, 314 S.W.2d at 909 [9]; Levin v. Caldwell, Mo., 285 S.W.2d 655, 659 [3]. What constitutes negligence in failing to keep a lookout in a particular direction at a particular time or place, and whether a driver who has looked has seen all that he should, is usually a fact question, Slaughter v. Myers, supra, 335 S.W.2d at 54 [6]; 61 C.J.S. Motor Vehicles, § 526, pp. 437-438, and we have the view in this case that the evidence simply presented a question for the jury on the issue of defendant’s contributory negligence.

Plaintiff attacks defendant’s Instruction D-5, his humanitarian submission, on the ground that it permits the jury to consider Mrs. Henrickson’s actions before the defendant’s position of imminent peril arose, and thus fails to negative antecedent negligence. As authority, the plaintiff cites the case of Wood v. Ezell, Mo.App., 342 S.W.2d 503, 509-510 [10, 11], It is true that the Wood case, and a number of other decisions, e. g., Stith v. St. Louis Pub. Serv. Co., 363 Mo. 442, 453, 251 S.W.2d 693, 699-700 [12], 34 A.L.R.2d 972, and White v. Kansas City Pub. Serv. Co., 347 Mo. 895, 899, 149 S.W.2d 375, 377-378 [4-6], point out that a humanitarian instruction must be formulated so as to exclude consideration of antecedent primary negligence or contributory negligence; the hypothesis of the acts of humanitarian negligence charged must be so formulated as to limit the jury’s consideration to the acts of negligence occurring after the situation of imminent peril arose. However, we consider the plaintiff’s criticism to be hypertechnical in this case. That part of defendant’s Instruction D-5 which is material here read as follows:

“ * * * and that Ronnie Resnik before the collision became and was in a position of imminent peril of being injured by a collision between the two automobiles, and that Mrs. Henrickson saw or by the exercise of the highest degree of care could have seen Ronnie Resnik in such position of imminent peril in time thereafter by the exercise of the highest degree of care and with safety to herself, her passenger and her car to have avoided the collision by stopping her automobile but failed to do so, and was thereby negligent, if you so find, and that as a direct result of such negligence, if any, Ronnie Res-nik was injured, then you will find the issues in favor of the defendant on defendant’s counterclaim; and this is true even though you may find Ronnie Resnik was negligent in getting into such position of imminent peril.”

This instruction does not, in our view, permit consideration of any antecedent negligence on Mrs. Henrickson’s part. By hypothesizing the plaintiff’s ability to avoid the collision by stopping, and then requiring a finding that she failed to do so, the defendant has sufficiently limited the jury’s consideration of humanitarian negligence to the act charged after the situation of imminent peril arose, and the hypothesis of negligence is clearly “related back” to the postulate of a humanitarian situation. Wood v. Ezell, supra, 342 S.W.2d at 509; White v. Kansas City Pub. Serv. Co., Mo.App., 140 S.W.2d 711, 713. The instruction is not erroneous, at least in the respects briefed and argued by the appellant.

The plaintiff also maintains that defendant’s Instruction D-l is erroneous, because it states an abstract proposition of law and conflicts with plaintiff’s Instruction P-1. Defendant’s Instruction D-l submitted his counterclaim on primary negligence, and was as follows:

“The Court instructs the jury that if you believe and find from the evidence that on the occasion in question, Ronald Resnik was operating his automobile Southwardly over and along Ninth Street at and near its intersection with Maude Street, and that the plaintiff Mrs. Henrickson was operating her automobile Eastwardly along Muade Street at and near said intersection, and that the plaintiff Ronald Resnik was at all times in the exercise of the highest degree of care and was not negligent as submitted to you in other instructions, and that there was at said time and place a stopsign erected for traffic entering Ninth Street from Maude Street and there was no stop-sign erected for traffic entering Maude Street from Ninth Street, and that regardless of whether or not Mrs. Hen-rickson stopped her automobile before entering Ninth Street, if you find that she drove into the intersection and into the path of and into collision with the automobile operated by Ronald Resnik, and that when Mrs. Henrickson entered the intersection Ronald Resnik was approaching so closely as to constitute an immediate hazard of collision, and if you find that Mrs. Henrickson was thereby negligent and that such negligence directly caused the collision and injuries to Ronald Resnik, then you will find the issues in favor of Ronald Resnik and against Mrs. Henrickson on the defendant’s counterclaim.”

The appellant’s specific complaints are that the instruction should have defined the term “immediate hazard,” and that the instruction, as given, conflicts with her Instruction P-1 (a humanitarian submission), because it does not differentiate the term “immediate hazard” from the phrase “position of imminent peril.”

Again we believe the plaintiff’s criticisms are hypertechnical. In the first place, Instruction D-l is formulated so as to exclude positively the jury’s consideration of humanitarian negligence, for the defendant has hypothesized and required the jury to find that the defendant “was at all times in the exercise of the highest degree of care and was not negligent as submitted to you in other instructions * * This at least prevented, according to current authority, the jury’s confusion of the humanitarian submissions and the defendant’s primary submission. Dixon v. Edelen, Mo., 300 S.W.2d 469, 473-474 [6], Nor can we agree that the requirement “that when Mrs. Henrickson entered the intersection [defendant] was approaching so closely as to constitute an immediate hazard of collision” is abstract in its nature. The term “immediate hazard of collision” is not a technical term, Lafferty v. Wattle, Mo.App., 349 S.W.2d 519, 529, and the instruction is not subject to criticism because that phrase was used without further definition. Upon the record presented, we find nothing reversibly erroneous in Instruction D-l.

For the reasons indicated, the judgment is affirmed.

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


text:
    In the Matter of the ESTATE of Jacob SCHELL, Deceased. Mary E. SCHELL, Appellant, v. Hugh SCHELL, Administrator, Respondent.
    No. 8417.
    Springfield Court of Appeals. Missouri.
    May 5, 1965.

      James L. Paul, Pineville, for appellant.
    Robert E. Yocom, Pineville, for respondent.
   HOGAN, Judge.

This cause again comes before this court, having originally been submitted at the September 1963 session. Upon that submission, we were doubtful of our jurisdiction and transferred the cause to the Supreme Court. In re Schell’s Estate, Mo.App., 370 S.W.2d 816, 819 [11]. The Supreme Court, upon examination of the record, concluded that jurisdiction of the appeal was indeed in this court and accordingly retransferred the case; it is now before us for consideration upon the merits. Schell v. Schell, Mo., 381 S.W.2d 864, 865-866.

In brief, the facts are that the appellant, Mary E. Schell, is the widow of Jacob Schell, deceased. Mr. and Mrs. Schell, both of advanced years, were married April 21, 1953, and lived together as husband and wife, occuping the real estate here in question, until Mr. Schell died April 7, 1958. Prior to his marriage to the appellant, Jacob Schell executed two warranty deeds conveying the real estate involved to three adult children by a former marriage, Hugh Schell, the respondent administrator, Clifford Schell, and Jewell Robbin. The two deeds, introduced in evidence, show on their face that they were recorded April 11, 1958, four days after the death of Jacob Schell. The real estate thus purportedly conveyed was not included in the inventory of the estate of Jacob Schell, deceased.

At some time after the inventory of the estate, Mrs. Mary Schell, the surviving spouse, filed a pleading in the probate court, styled “Exception to Inventory and Ap-praisement Filed Herein,” setting forth that Jacob Schell had, prior to his death, executed the warranty deeds in question, that the deeds were being held “conditionally and not absolutely” by a bank in Pea Ridge, Arkansas, and that subsequent to the decedent’s death the grantees had procured the deeds and recorded them. The pleading also set forth that title to the real estate involved was vested in the decedent and that the appellant was entitled “to a widow’s share” of the realty. The pleading requested that an inquiry be made into the facts and concluded with a prayer “ * * * that the court award your applicant such money as she may be entitled to by reason of being widow of the deceased and establish the same as a lien against said real estate.”

A hearing was held in the Probate Court of McDonald County, Missouri, on this pleading, which is probably properly styled a petition. Section 472.080(1) , The probate court found, among other things, that the decedent had conveyed the real estate in question to the named grantees on February 17, 1953, for a valuable consideration; that the deeds were recorded subsequent to the death of the intestate decedent on April 11, 1958; that the deeds had been deposited in a bank prior to Jacob Schell’s death and were delivered to the grantees after'his death; that the two deeds were testamentary in character; that there had been no actual delivery until after the grantor’s death, and therefore the realty involved was part of the estate of Jacob Schell and as such should be included in “the inventory and the administration.”

The administrator thereupon appealed to the circuit court, which reversed the finding below, finding as a fact that the deeds had been observed in the possession of one of the grantees in May 1955; consequently, there had been an effectual delivery and the real property was not subject to administration. The surviving spouse thereupon appealed to this court.

The looseness with which the appellant’s original pleading was drawn and the sparsity of the record presented have made it extremely difficult to deal with this cause on appeal; however, a fair characterization of the appellant spouse’s position would seem to be that she asked the probate court (a) to determine if the realty in question had been effectually conveyed prior to the decedent’s death; (b) to order the realty inventoried, if in fact the title was vested in the decedent at his death; and (c) to make some kind of allowance to the appellant spouse — either the family allowance contemplated by Section 474.260 or the homestead allowance to which she might be entitled under Section 474.290. As we previously pointed out, the ultimate issue tried was whether or not Mary Schell, as widow of Jacob Schell, had any interest in the lands involved, and this depended on whether he had conveyed it in his lifetime. However, as has been repeatedly held, the probate court has no jurisdiction to decide whether or not title to a particular parcel of realty was vested in the decedent at the time of his death, and the jurisdiction of the circuit court on appeal, being derivative, was no greater or broader than the probate court had itself. What is more, we have the opinion of the Supreme Court, Schell v. Schell, supra, 381 S.W.2d at 865, that the judgment rendered cannot be construed as determining title, and therefore, to the extent the judgment appealed from purports to adjudicate the title in the grantees of the deeds in question, we must hold it to be erroneous and void.

On the other hand, we take the case for review as we would take any other case tried by the circuit court without a jury, Cranford v. Langston, Mo.App., 356 S.W.2d 581, 584 [1], and it is our duty to review the case upon the law and the evidence as in suits of an equitable nature, Rule 73.01(d), V.A.M.R., and, to the extent possible, dispose finally of the case by giving such judgment as to us shall seem agreeable to law, Rule 83.13(c), though we cannot and do not comment upon the title controversy indirectly involved beyond saying that it remains subject to determination in the proper forum. Schell v. Schell, supra, 381 S.W.2d at 865.

The appellant’s petition properly invoked the jurisdiction of the probate court in two respects. It asked for the inclusion of omitted real property in the inventory and (at least very imperfectly) for an allowance for the appellant as surviving spouse. The probate court had jurisdiction to compel the administrator to inventory any property of the estate which had been overlooked or omitted at any time before final settlement, Walter v. Ford, 74 Mo. 195, 198-199; Chapin’s Estate v. Long, 205 Mo.App. 414, 417-418, 224 S.W. 1012, 1013 [1], and the inclusion of real property in the inventory does not depend upon the decedent’s ownership, but merely his possession. Section 473.233, par. 1, subpar. (7), as amended L.1957, p. 829, Section 1, and L.1959, S.B. 141, Section 1, provides for and requires the inventory of all property possessed but not owned by the decedent at his death, and the statute requires a statement as to the knowledge of the administrator concerning its ownership. By definition, the word “property” in the Probate Code of 1955 includes both real and personal property. Section 472.010, subpar. (26), as amended L.1957, p. 829, Section 1. While we do not undertake to define precisely and for all purposes the meaning of the word “possessed” as it appears in subpar. (7) of par. 1 of Section 473.233, the record before us supports the inference that the decedent was “in possession” of the realty concerned in the sense that the decedent physically occupied it and exercised some dominion over it by “kind of truck farm[ing] and such as that,” and by paying the taxes. This is at least a species of possession. National Cypress Pole & Piling Co. v. Hemphill Lbr. Co., 325 Mo. 807, 818, 31 S.W.2d 1059, 1063 [3, 4], The realty in question was properly to be included, and should have been included, in the inventory.

The final point to be disposed of is the appellant’s claim for allowances. The record leaves us unable to ascertain whether the appellant sought to claim the family allowance provided for by Section 474.260 or the homestead allowance provided for by Section 474.290. At one point, appellant’s pleading speaks of a “widow’s share” in real estate; at another, she prays for “such money as she may be entitled to.” We cannot, upon anything presented here, determine the condition of the estate, the point to which administration thereon had proceeded when the appellant’s pleading was originally filed, nor indeed, upon this state of the record, whether there are any assets from which the appellant’s claim for allowances can be satisfied. The appellant should amend her pleading so as to show plainly, or at least discernibly, whether she claims the family allowance or the homestead allowance, or both, and should couch her petition in the form and language suggested by the drafters of the Probate Code. However, since formal pleadings are not required in probate court, Lenhardt’s Estate v. Lenhardt, Mo.App., 322 S.W.2d 170, 173 [4], and since the appellant’s assertions in her pleading are wholly inconsistent with a voluntary relinquishment of her rights under either Section 474.260 or Section 474.290, we must hold that the appellant has not waived or failed to assert her rights as surviving spouse under these statutes.

It is therefore ordered that the real property involved be inventoried as part of the estate of Jacob Schell, deceased, and that the appellant be permitted to amend her pleading so as to assert any rights which may have accrued to her under the provisions of Section 474.260 or Section 474.290, subject to a determination of decedent’s title to the realty in question in the proper forum.

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

      . All references to statutes and rules are to RSMo (1959), V.A.M.S. and V.A.M.R., unless otherwise noted.

      . Schell v. Schell, supra, 381 S.W.2d at 865; State ex inf. Kell v. Buchanan, 357 Mo. 750, 755, 210 S.W.2d 359, 362 [5, 6]; Nettleton Bank v. McGaughey’s Estate, 318 Mo. 948, 955-956, 2 S.W.2d 771, 776 [13, 14]; In re Strom’s Estate, 213 Mo. 1, 6-7, 111 S.W. 534, 536; In re Wood’s Estate, 138 Mo.App. 258, 262-263, 120 S.W. 635, 637.

      .In re Franz’ Estate, Mo., 372 S.W.2d 885, 902 [10]; In re Thomson’s Estate, 362 Mo. 1043, 1052-1053, 246 S.W.2d 791, 796 [6]; State ex rel. Kinealy v. Hostetter, 340 Mo. 965, 971, 104 S.W.2d 303, 307 [5]; Evans v. York, Mo.App., 216 S.W.2d 124, 127 [3].